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2021-06-09 Coldwater Indian Band

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2021-06-09 Coldwater Indian Band Hearing Order MH-032-2020 Board File: OF-Fac-Oil-T260-2013-03 61 CANADA ENERGY REGULATOR IN THE MATTER OF the Canadian Energy Regulator Act, SC 2019, c 28, s 10, as amended, (the “CER Act”) and regulations made thereunder; and IN THE MATTER OF an application by Trans Mountain Pipeline ULC (“Trans Mountain”) pursuant to s. 190 of the CER Act to vary the approved pipeline corridor for the Trans Mountain Expansion Project (the “Project”) approved under Certificate of Public Convenience and Necessity OC-065 (“Certificate”) Final Argument of Coldwater Indian Band June 9, 2021 TO: The Secretary Canada Energy Regulator Suite 210-517 Tenth Avenue SW Calgary, Alberta T2R 0A8 02013296 Table of Contents PART 1 - OVERVIEW ................................................................................................................... 1 PART 2 - FACTS............................................................................................................................ 2 A. Coldwater’s Aboriginal and Reserve Interests in the Coldwater Valley ............................ 2 1. Extensive Use of Coldwater Valley ................................................................................ 2 2. Coldwater Reserves ........................................................................................................ 4 B. The West Alternative Avoids Risks to Coldwater’s Drinking Water ................................. 5 C. Coldwater Has Been Seeking a Route Change for Several Years ...................................... 6 D. Other Impacts Reduced by the West Alternative ................................................................ 8 E. Coldwater is the Closest and Most Directly Affected Community .................................... 9 PART 3 - THE VARIANCE IS IN THE PUBLIC INTEREST ................................................... 10 A. Overview ........................................................................................................................... 10 B. Protection of Coldwater’s Aquifer is in the Public Interest .............................................. 11 C. Other Factors that Support the West Alternative .............................................................. 12 PART 4 - SUBMISSIONS ON CONDITIONS ........................................................................... 14 A. No Objection to Removal of Condition 39 ....................................................................... 14 B. Applicable Conditions ...................................................................................................... 15 1. Project Conditions that Should Apply to the West Alternative .................................... 15 2. Additional Proposed Project Conditions – Construction Monitoring and Coldwater River Crossings ..................................................................................................................... 16 PART 5 - ORDER SOUGHT ....................................................................................................... 18 List of Authorities ......................................................................................................................... 19 02013296 PART 1 - OVERVIEW 1. Coldwater Indian Band (“Coldwater”) supports Trans Mountain’s Variance Application for West Alternative route the through the Coldwater Valley, subject to ongoing engagement with their community and the following submissions. 2. Trans Mountain sought and obtained approval for a route corridor for the Trans Mountain Expansion Project (the “Project”) that runs along the eastern side of the Coldwater Valley (the “East Alternative”), abutting the eastern edge of the Coldwater Indian Reserve No. 1 (“IR 1” or the “Reserve”). The East Alternative runs through the recharge zone of Coldwater’s sole source aquifer, threatening the community’s drinking water supply and the aquifer that forms part of IR 1. 3. Coldwater strongly supports the West Alternative over the East Alternative because the West Alternative: (a) avoids risks and impacts to its sole source of drinking water, which forms part of IR 1 and on which the community intends to rely for many generations; (b) avoids impacts on traditional land use values, including places of great spiritual importance, that Coldwater members use on a daily basis due to proximity to their main residential community on IR 1; (c) avoids risks of further contamination of the Coldwater Reserve in the heart of the Coldwater community; and (d) will not impede the future use and development of the Coldwater residential community located on the east side of the Coldwater Valley.1 4. Given Trans Mountain’s conclusions that the two routes have similar environmental effects, the protection of Coldwater’s drinking water clearly tips the balance and justifies a finding that varying the Project corridor to run along the West Alternative is in the public interest. 1 Coldwater Written Evidence, dated March 3, 2021 (Exhibit C-12076-2) [“Coldwater Evidence”], PDF 4, para 3 1 02013296 5. Coldwater submits that the Commission should grant Trans Mountain the variance it seeks, which would allow for the construction and operation of the Project in a manner that avoids impacts and risks to Coldwater’s drinking water, including associated reserve interests and aboriginal rights. Further, the Variance Application is clearly grounded in new facts and circumstances that have arisen since the June 2019 approval of the Project, including studies confirming the West Alternative is technically feasible and Coldwater’s support for the West Alternative, which provides further reason to vary the route corridor now. PART 2 - FACTS 6. Coldwater relies on the facts set out in Coldwater’s Written Evidence, filed with the Commission on March 3, 2021, as well as portions of Trans Mountain’s Variance Application. The Commission’s May 26, 2021 Crown Consultation and Accommodation Report (“CCAR”) has raised new factual issues to which Coldwater has not had an opportunity to respond and does so now, in accordance with the CER’s May 11, 2021 ruling.2 A. COLDWATER’S ABORIGINAL AND RESERVE INTERESTS IN THE COLDWATER VALLEY 1. Extensive Use of Coldwater Valley 7. Coldwater has used and occupied the Coldwater Valley since the time before memory, never ceding or surrendering its aboriginal rights and title interests.3 Coldwater’s ancestors originally occupied a village, called Ntstlatko, at the confluence of the Coldwater and Nicola Rivers, in what is now known as Merritt, BC. The ancestors that lived at Ntstlatko relied on the Coldwater Valley as a resource area.4 2 CER May 11, 2021 letter re: Ruling – CER Motion for Extension to file Crown Consultation and Accommodation Report (CCAR); and revised hearing dates (C13037-1), PDF 4 3 Coldwater Evidence, PDF 5, para 6 4 Coldwater Evidence, Appendix A, May 2020, Traditional Use Study Review of Trans Mountain Pipeline Expansion Project Route Alternatives by Richard Inglis (Exhibit C12076) [“Inglis Report”], PDF 2, 9. Because the entirety of the Inglis Report is confidential and privileged it was filed confidentially with the Commission and is not available on the public registry (Exhibit C12076-1). The subfile of Exhibit C12076 is unknown. 2 02013296 8. Today, Coldwater people still use and rely on the Coldwater Valley, continuing a land use pattern of past generations and their ancestors.5 Richard Inglis, an experienced anthropologist,6 describes how Coldwater’s use and occupation of the Coldwater Valley is integral to their distinctive culture: Traditional use sites and areas are part of the cultural fabric of being a member of the Coldwater Indian Band. For Coldwater members, being out in the territory connects the present to the past and to generations of ancestors. These activities are part of their identity, an expression of being a Coldwater Indian Band member. They are what bind families together.7 9. Coldwater’s extensive and ongoing use of the Coldwater Valley is documented in the 2020 “Traditional Use Study Review of Trans Mountain Pipeline Expansion Project Route Alternatives” by Mr. Inglis,8 particularly the confidential map of all uses found at PDF 25. 10. Coldwater’s Written Evidence also reflects Coldwater’s understanding that its unceded rights and title interests are held not only for the present generation, but for all succeeding generations, and indeed all living creatures that share their land.9 11. In light of Coldwater’s asserted aboriginal rights and title in the Coldwater Valley (and other parts of Nlaka’pamux territory), the Crown assessed its duty to consult Coldwater on the Project at the “deeper end of the consultation spectrum.”10 In 2019-2020 litigation against the Project, all parties, including Canada, agreed the duty to consult Coldwater, “was one of deep consultation.”11 5 Inglis Report, PDF 52 6 CV of Richard Inglis (Exhibit C12540-2) 7 Inglis Report, PDF 52 8 Inglis Report, PDF 20 to 51. Also see Coldwater Evidence, PDF 9 to 46 9 This is consistent with the Supreme Court of Canada’s recognition that aboriginal title is for the use and enjoying of future generations and cannot be encumbered in ways that would deprive future generations of the benefit of the land (Tsilhqot’in Nation v British Columbia, 2014 SCC 44, para 74); Coldwater Written Evidence, PDF 4, 5, paras 3(a), 4 10 Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 [“Tsleil-Waututh”], para 34 11 Coldwater Indian Band v Canada (Attorney General), 2020 FCA 34 [“Coldwater”], para 16 3 02013296 12. The Commission does not appear
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