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

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 , 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 to have assessed the depth of consultation owed to any First Nations, including Coldwater, in the CCAR.

2. Coldwater Reserves

13. When Coldwater’s Ntstlatko village lands were taken up in the late 1800s by settlers, Canada chose to allocate reserves to Coldwater in the Coldwater Valley.12 These included IR 1 and Paul’s Basin No. 2 (“IR 2”). Both are located squarely within the Coldwater Valley. There are no other reserves nearby, and Coldwater is the only Band or First Nation with reserves in the Coldwater Valley.13

14. In allocating the Coldwater reserves, Reserve Commissioner Sproat recognized the need to ensure adequate access to water for agricultural and other purposes on the reserves, including water sourced from “springs or other sources of supply”, assigning IR 1 water for “irrigation and other purposes […] particularly from the Qui.sah.ten [Kwinshatin] stream and also from all other sources of water supply”.14

15. Following the allocation of IR 1 and IR 2 in May, 188915 Coldwater requested additional lands connecting the two reserves but the request was denied.16 The southern end of the West Alternative runs across the lands that were requested and between the two reserves.17

12 Inglis Report, PDF 12, 13 13 Joeyaska Indian Reserve No. 2 and Antko Indian Reserve No. 21 are located to the east of the Coldwater River just outside of Merritt, BC in what would be described as the Nicola Valley. Joeyaska Indian Reserve No. 2 is held for and Antko Indian Reserve No. 21 is held for Cook’s Ferry Indian Band. For a map of these reserves see Inglis Report, PDF 11 14 Inglis Report, PDF 14, 15 15 Inglis Report, PDF 15 16 Inglis Report, PDF 16-18 17 Inglis Report, PDF 11 4

02013296 B. THE WEST ALTERNATIVE AVOIDS RISKS TO COLDWATER’S DRINKING WATER

16. Coldwater relies on an aquifer below IR 1 (the “Reserve Aquifer”) as the sole source of drinking water for 90% of Reserve residents, as well as for agricultural and other uses.18 There is no alternative water source available that could sustain the community’s needs.19

17. The West Alternative is the only route put forward by Trans Mountain that poses no apparent threat to Coldwater’s aquifer. The East Alternative poses the greatest risk of contaminating the aquifer that supplies drinking water to the Coldwater Reserve, including in comparison to the existing Trans Mountain Pipeline.20

18. Coldwater relies primarily on the expert evidence of Thierry Carriou, a physical hydrogeologist at BC Groundwater Consulting Services (“BC Groundwater”) with over twenty years of experience working in the Coldwater Valley,21 regarding the risks and impacts of the East and West Alternatives.

19. Mr. Carriou’s investigations confirm the existence of the Reserve Aquifer and indicate that it is recharged primarily by upslope water infiltration, including from Kwinshatin Creek.22 The East Alternative, and approved Project corridor, passes through the “recharge zone” of the Reserve Aquifer, including the Kwinshatin Creek drainage (even crossing the creek itself). This creates a direct hydraulic connection between the East Alternative and the Reserve Aquifer.23

20. This direct hydraulic connection means that:

(a) construction of the East Alternative could reduce the volume and quality of water in the Reserve Aquifer; and

18 Coldwater Evidence, PDF 17, para 49 19 Coldwater Evidence, PDF 17, para 50 20 Coldwater Evidence, PDF 17, para 55(c) 21 Affidavit of Thierry Carriou, made April 21, 2021 (C12683-3), paras 1-2 22 Coldwater Evidence, PDF 17, para 52 23 Coldwater Evidence, PDF 18, paras 52(c), 53; Appendix B, BC Groundwater Report 2015 (Extract) (C12076-3), p. 5-6, 10 5

02013296 (b) operation of the East Alternative could result in contamination of the Reserve Aquifer that “may be impossible to remediate […] to potable standards once it has been contaminated by hydrocarbons”.24

21. The West Alternative avoids these impacts and risks. The uncontested evidence of Mr. Carriou is that there are no similar aquifers on the western side of the Coldwater Valley, and therefore “the West Alternative route poses no risk” to Coldwater’s current water supply.25

C. COLDWATER HAS BEEN SEEKING A ROUTE CHANGE FOR SEVERAL YEARS

22. Coldwater has been raising concerns about the unacceptable risks the Project poses to its Reserve Aquifer since at least 2013, through regulatory processes, Crown consultation and directly with Trans Mountain. Coldwater twice challenged the Governor in Council (“GIC”)’s approval of the Project in the Federal Court of Appeal.

23. Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153 overturned the approval of the Project, including on the basis that “Canada failed to meaningfully engage with Coldwater, and to discuss and explore options to deal with the real concern about the sole source of drinking water for its Reserve.”26 The Court also found that despite approval of the Project, “the pipeline route through the Coldwater River Valley remains a live issue”, subject to National Energy Board (now CER) review, and that the route could be varied “in order to avoid risk to the Coldwater aquifer.”27 Any decision about routing in the Coldwater Valley would “trigger the duty to consult because Canada will have knowledge, real or constructive, of the potential impact on that decision upon Coldwater’s aquifer located beneath the Coldwater Reserve.”28 The Board must also take Coldwater’s rights and interests into consideration before making its final decision, and

24 Coldwater Evidence, PDF 19, para 55(b) citing Coldwater Written Evidence on Detailed Route Hearing for East Alternative, November 28, 2016 letter from Messers. Neil and Braun to Chief Spahan (Appendix B, Part 7, Tab 21, PDF 6) (A6D0Z0) 25 Coldwater Evidence, PDF 20, para 58, citing Appendix C, BC Groundwater Opinion re TMEP Western Alternative Route, March 19, 2021 (C12076-4), PDF 2, 4, 19 26 Tsleil-Waututh, para 680 27 Tsleil-Waututh, paras 383-385 28 Tsleil-Waututh, para 547 6

02013296 “Canada will remain responsible to ensure that the Board’s decision upholds honour of the Crown”.29

24. Coldwater again challenged the approval of the Project after the Crown approved the Project and route corridor along the East Alternative for a second time in June 2019. Coldwater Indian Band v Canada (Attorney General), 2020 FCA 34 upheld the approval of the Project, noting that “the NEB had the power to approve a route outside of the approved corridor”, including the West Alternative, and that the pipeline routing remained a live issue, despite the GIC’s approval of the Project as a whole.30

25. Engagement with Trans Mountain on the West Alternative continued after the June 2019 approval of the Project and the Coldwater decision. This included Trans Mountain’s April 15, 2020 Feasibility Study of the West Alternative,31 which confirmed that the route was technically feasible, and Coldwater’s traditional land use evaluation comparing the West and East Alternatives, prepared by Mr. Inglis.32

26. On October 9, 2020, after Coldwater had been clearly articulating the risks and impacts the East Alternative posed to their on-Reserve drinking water for more than seven years, Trans Mountain applied to the Commission to vary the route corridor for the Project on the basis that the West Alternative would address Coldwater’s concerns about risks to its water.

27. The driving purpose behind this application is to respond to Coldwater’s fundamental concerns about the East Alternative and to protect Coldwater’s drinking water from the unnecessary risks posed by that route. No other measures have been put forward by Canada or Trans Mountain that would address Coldwater’s concerns about impacts and risks to their Reserve Aquifer.

28. As the Band, and the member of the Nlaka’pamux Nation, most directly and significantly impacted by routing through the Coldwater Valley, Coldwater provided Trans Mountain

29 Tsleil-Waututh, para 547 30 Coldwater, paras 93, 94 31 Feasibility Study of the Coldwater IR West Alternative Route (Exhibit C05744-1) 32 Inglis Report 7

02013296 with a letter expressing its support for the Variance Application, subject to ongoing community engagement.

29. Despite Coldwater’s strong support for the West Alternative, Coldwater does not support the Project as a whole, which will cut through core harvesting and use areas, including the Coquihalla Summit Area, adversely affecting their aboriginal rights and title interests.33 With the Crown having now twice approved the Project, Coldwater feels they have no choice but to live with this major industrial project running through their lands.34 Given this reality, Coldwater’s strong preference is that Project run along the West Alternative, avoiding unnecessary risks to their Reserve aquifer and drinking water.

D. OTHER IMPACTS REDUCED BY THE WEST ALTERNATIVE

30. In addition to avoiding unnecessary risks to the Reserve Aquifer and drinking water, Coldwater’s evidence is that, as compared to the East Alternative, the West Alternative:

• Is preferred by Coldwater elders and knowledge holders interviewed by Mr. Inglis, including because it avoids additional impacts to the already heavily impacted eastern side of the valley which is heavily relied on by community members given its proximity to the main residential community on IR 1;35

• Avoids risks to sacred creeks36 and heavily used areas on the eastern side of the valley relied on by many of the Reserve’s most vulnerable residents;37

• Reduces new right of way length from more than 10 km to less than 4 km in an already heavily impacted landscape;38 and

• Avoids limits on Coldwater’s future use of IR 1, including by imposing unnecessary restrictions and costs.39

33 Coldwater Evidence, PDF 5, para 4 34 Coldwater Evidence, PDF 5, para 4 35 Coldwater Evidence, PDF 12-13, para 33, PDF 16, para 46 36 Coldwater Evidence, PDF 14-15, paras 38-42 37 Coldwater Evidence, PDF 25, para 44 38 Coldwater Evidence, PDF 20, paras 59-60 8

02013296 E. COLDWATER IS THE CLOSEST AND MOST DIRECTLY AFFECTED COMMUNITY

31. In addition to the letter from Coldwater, Trans Mountain included letters of support from several other First Nations and Bands with the potential to be affected by the West Alternative. Based on the CCAR, it is clear that even the Nlaka’pamux Nation (“NNTC”), which represents four other Nlaka’pamux communities, supports Coldwater’s desire to protect its drinking water.

32. The fact that Coldwater is the indigenous community most affected by a routing decision in the Coldwater Valley is reflected in letters from , Cook’s Ferry Indian Band, , Shackan Indian Band, , , and Upper Nicola Indian Band, which all support Coldwater’s position on the West Alternative.40

33. Through the CCAR, NNTC appear to have concerns with the West Alternative. NNTC asserts that “Nlaka’pamux Title and rights are held by the Nation and are not held by the bands” and that “Bands and reserves have no place in the Nlaka’pamux cultural landscape.” 41 The implication is that NNTC appropriately speaks for the Nlaka’pamux Nation as a whole. This is incorrect. The only members of the NNTC are , Oregon Jack Creek Indian Band, and .42 At most, the NNTC speaks only for four communities. The NNTC does not speak for or otherwise represent Coldwater.

34. To be clear, Coldwater is a member of the Nlaka’pamux Nation, which is comprised of multiple Bands. However, Coldwater’s rights and interests are represented by Coldwater Chief and Council and it is not governed or represented by a larger entity.43 There is no entity that represents the rights and title interests of the Nlaka’pamux Nation as a whole.

39 Coldwater Evidence, PDF 20-21, paras 61-62 40 Trans Mountain Variance Application (Exhibit C08844-1), PDF 276-285 41 Crown Consultation and Accommodation Report Appendices (Exhibit C13255-3), Appendix 3 PDF 14 42 CCAR (Exhibit C12355-2), PDF 11; Crown Consultation and Accommodation Report Appendices (Exhibit C13255-3), Appendix 3 PDF 18 43 The Nlaka’pamux Nation Tribal Council only speaks for its member Bands and does not represent or speak for Coldwater. 9

02013296 35. In any event, the four members of the NNTC “support the Coldwater Indian Band in its efforts to protect its drinking water aquifer from the risks and impacts posed by the Expansion Project.” 44 As explained above, the West Alternative is the only measure proposed by either Trans Mountain or Canada that would avoid impacts and risks to Coldwater’s Reserve Aquifer.

PART 3 - THE VARIANCE IS IN THE PUBLIC INTEREST

A. OVERVIEW

36. Trans Mountain has applied to vary the Project corridor so that it runs along the West Alternative.

37. The Commission is to determine whether the proposed corridor realignment is in the public interest45 and, as the courts have already acknowledged, this routing decision also engages the honour of the Crown and triggers the Crown’s duty to consult and accommodate Coldwater.46 This gives rise to “a special public interest that supersedes other concerns commonly considered by tribunals tasked with assessing the public interest.”47

38. Granting the requested Variance Application is in the public interest because it avoids unnecessary impacts and risks to Coldwater’s Reserve Aquifer and drinking water.

39. Additional factors that weigh in favour of the West Alternative as compared to the East Alternative are that the West Alternative:

(a) is preferred over the East Alternative by Coldwater elders and knowledge holders interviewed by Mr. Inglis;

(b) avoids limits to Coldwater’s future use of the east side of IR1 adjacent to the existing residential community;

44 Crown Consultation and Accommodation Report Appendices (Exhibit C13255-3), Appendix 3 PDF 18 45 Hearing Order (Exhibit C10826-3), p. 4 46 Tsleil-Waututh, para 547; Coldwater, paras 93, 94. 47 Tsleil-Waututh, para 507, citing Clyde River (Hamlet) v. Petroleum Geo-Services Inc. 2017 SCC 40, para 40 10

02013296 (c) reduces new greenfield disturbance associated with the Project in the Coldwater Valley; and

(d) is expressly favored by Coldwater, subject to ongoing engagement with its community, over the East Alternative. Coldwater’s position is supported by at least seven other First Nations and Bands, in addition to the four members of the NNTC.

B. PROTECTION OF COLDWATER’S AQUIFER IS IN THE PUBLIC INTEREST

40. There are few matters that so intensely represent the disparity between Indigenous communities and the broader Canadian society than access to clean drinking water. The United Nations “[r]ecognizes the right to safe and clean drinking water” as a human right.48

41. While roughly 99% of Canadians have access to safe drinking water, the remaining 1% of Canadians are predominantly indigenous people living on reserves.49 That disparity has been criticized by the United Nations, the Royal Commission on Aboriginal Peoples, and the Auditor General of Canada.50

42. Where clean water exists on a reserve – as it does on the Coldwater Reserve – it must be a top national priority to protect that water and, for indigenous peoples, it most certainty represents a keystone for reconciliation.

43. The consistent and longstanding evidence of Mr. Carriou about the impacts and risks posed by the East Alternative to the Reserve Aquifer and drinking water has gone

48 The Human Right to Water and Sanitation, UNGA Res 64/292 49 David R. Boyd, “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada” (2011) 57:1 McGill LJ 81. 50 UN Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, UNESCOR, 36th Sess, UN Doc E/C.12/CAN/CO/4 and UN Doc E/C.12/CAN/CO/5 (2006) 1, at 588-589; “National Commission Inquiry on Indian Health Policy: A Compilation of Health Policy Papers” in Public Policy and Aboriginal Peoples, 1965-1992: Summaries of Reports by Federal Bodies and Aboriginal Organizations (1994), vol 2 (Ottawa: Supply and Services Canada, 1994) 226, at 607; House of Commons, Office of the Auditor General of Canada, “Chapter 5: Drinking Water in First Nations Communities” in Report of the Commissioner of the Environment and Sustainable Development to the House of Commons (29 September 2005). 11

02013296 unchallenged in this proceeding.51 It is clearly in the public interest to avoid these risks, particularly when access to clean and safe water on reserve is not only a matter of national, and international, importance but also a basic human right.

44. Given the clear evidence that the West Alternative is feasible, has similar environmental effects as the East Alternative, and avoids serious impacts and risks to Coldwater’s Reserve Aquifer, there is no reason on the record for the Commission to prefer the East Alternative.

C. OTHER FACTORS THAT SUPPORT THE WEST ALTERNATIVE

45. Overall, the environmental effects of the West Alternative are comparable to those associated with the East Alternative.52 In light of this, the Commission ought to defer to the preference and perspective of the indigenous people that stand to be most directly affected by the Project route through the Coldwater Valley – the Coldwater Indian Band.

46. As outlined in Coldwater’s Written Evidence,53 many of the Coldwater elders and knowledge holders interviewed preferred the West Alternative over the East Alternative because it avoids additional impacts to the already heavily impacted eastern side of the valley. Community members rely heavily on the east side of the valley for various rights practices given its proximity to the main residential community on IR 1.54 Amongst the people that rely on the east side of the valley are Coldwater’s most vulnerable members who are able to access these lands and resources by foot. There is no question that the West Alternative will still affect Coldwater members and their traditional uses, but the impacts will not be directly in their back yards.

47. Coldwater’s experience with the existing Trans Mountain pipeline – which runs directly through their community and has resulted in increased costs and hurdles in using their reserve lands – is an additional reason for Coldwater’s preference for the West

51 Coldwater Written Evidence, PDF 17-19, paras 49-55; Appendix B, BC Groundwater Report 2015 (Extract) (C12076-3), pp. 3, 5-6,10 52 Written Argument of Trans Mountain, dated June 3, 2021 (C13396-2) [“Trans Mountain Argument”], PDF 19, para 70 53 Including the Inglis Report 54 Coldwater Evidence, PDF 12-13, para 33, PDF 16, para 46 12

02013296 Alternative. The East Alternative would restrict and otherwise affect Coldwater’s use of those reserve lands directly adjacent to the IR 1 community via additional safety considerations, regulatory constraints, or requirements of consent from Trans Mountain. The West Alternative will avoid those harmful and unnecessary limitations on Coldwater’s use of its own reserve lands.

48. While the West Alternative is 2.91 kilometers longer than the East Alternative,55 most of the West Alternative parallels existing easements or right-of-way of other linear facilities. As a result, the West Alternative results in only 4 km of greenfield disturbance, in contrast with 10 km of greenfield disturbance from the East Alternative.56 Based on Trans Mountain’s own pipeline corridor selection process, which prioritizes siting the corridor on or adjacent to the existing pipeline or other linear facilities,57 the West Alternative better accords with Trans Mountain’s own routing criteria, and ought to have been selected on this basis in the first place.

49. Finally, Coldwater’s preference for the West Alternative is supported by all indigenous groups that have expressed their views in this proceeding, either through appendices to the CCAR, as NNTC has done, or through letters of support attached to Trans Mountain’s Variance application. While some indigenous groups continue to have concerns about the environmental and cultural effects of the Project, these should not militate against a finding that the West Alternative is in the public interest, given that the Crown has already decided to approve and proceed with the Project.

50. While Coldwater acknowledges NNTC’s interests in protecting fish, wildlife, plant and cultural heritage resources, protection of these interests should not – and need not – come at the expense of Coldwater’s defined Aboriginal interest in the Reserve or Coldwater’s clear preference as the indigenous community most directly affected by this decision. There is no suggestion in the CCAR or its Appendices (including NNTC’s direct submissions) that suggest NNTC’s concerns would be addressed by building the Project

55 Trans Mountain Argument, PDF 10, para 33 56 Coldwater Evidence, PDF 20, para 60 57 National Energy Board Report: Application for the Trans Mountain Expansion Project, MH-052-2018, February 2019, (A98021-1) [“Reconsideration Report”], p. 287, PDF 296 13

02013296 along the East Alternative. As noted above, the evidence before the CER is that the environmental impacts of the West Alternative are comparable to those from the East Alternative. Further, Coldwater continues to work with Trans Mountain to identify and address impacts the West Alternative may have on natural and cultural resources in the Coldwater Valley. In short, NNTC’s position on the West Alternative is not evidence that the East Alternative is a better or more preferred route, and should not weigh against the Variance Application when, due to the Crown’s conduct, the only alternative (the East Alternative) poses unacceptable risks to Coldwater’s drinking water.

51. The evidence before the Commission, particularly the uncontested evidence that the West Alternative avoids unnecessary risks to Coldwater’s Reserve Aquifer and drinking water, clearly justifies a finding that the West Alternative is in the public interest.

52. By approving the Variance Application, the Commission would allow Trans Mountain to address a fundamental flaw in the Project, which as currently approved poses unnecessary risks to reserve drinking water, threatens Coldwater’s basic human right to clean water and its established reserve interests and aboriginal rights, and undermines Canada’s stated goal of reconciliation.

PART 4 - SUBMISSIONS ON CONDITIONS

53. Coldwater makes the following submissions on project Conditions.

A. NO OBJECTION TO REMOVAL OF CONDITION 39

54. Trans Mountain requests that Condition 39 be removed from the Certificate and related orders.58 Condition 39 is aimed at ensuring risks and impacts of the East Alternative on Coldwater’s water are understood. Given the West Alternative would avoid unnecessary risks to the Reserve Aquifer, which Condition 39 is aimed at understanding, Coldwater agrees that Condition 39 should be removed from the Certificate if the Commission approves the Variance Application. So long as the Project is not constructed to the east of IR 1, Condition 39 is unnecessary.

58 Trans Mountain Argument (C13396-2), PDF 2, para 6 14

02013296 B. APPLICABLE CONDITIONS

1. Project Conditions that Should Apply to the West Alternative

55. Coldwater has no objection to Trans Mountain’s proposed approach to addressing pre- construction conditions to reflect the West Alternative, as described in the Variance Application.59 Conditions 67 (Outstanding horizontal directional drilling geotechnical and feasibility reports) 60 and 74 (Horizontal directional drilling (HDD) Noise Management Plan)61 relate to HDD crossings. These conditions should continue to apply to the West Alternative, even though Trans Mountain now proposes to use a Direct Pipe Installation (“DPI”) approach to river crossings.62

56. In addition, Coldwater notes that Project Condition 65 (Hydrology – notable water crossings)63 requires Trans Mountain to file revised flood frequency crossings for notable water crossings, including three crossings of the Coldwater River,64 but this condition is not mentioned in Trans Mountain’s Variance Application as applicable to the West Alternative. While a flood frequency analysis was included the Variance Application, changes to the construction method (HDD to DPI) and location for the Coldwater River crossings mean that Condition 65 should apply to the West Alternative to ensure the flood frequency analyses remain accurate for the final crossing locations and construction methods. Both crossings should be built to withstand higher spring freshets likely to be caused by climate change.

59As noted in the Commission’s Procedural Direction on Argument, Trans Mountain’s specific request is described on PDF page 24 (Paragraph 52 and Footnote 6) and in Appendix D (PDF page 287) of the application (C08844-1). 60 Reconsideration Report, p. 573, PDF 582 61 Reconsideration Report, p. 575 PDF 584 62 Trans Mountain Argument, PDF 11, para 40 63 Reconsideration Report, p. 574, PDF 582 64 See Application Volume 4A, Appendix I – Route Physiography and Hydrology Report, Appendix B – Notable Water Crossing Catchment Details (Filing A56000), PDF 77, Table 3-40 15

02013296 2. Additional Proposed Project Conditions – Construction Monitoring and Coldwater River Crossings

57. Coldwater continues to have site specific concerns with the two crossings of the Coldwater River associated with the West Alternative, particularly with the southern crossing, given potential interaction with groundwater resources at IR 2.65

58. While Trans Mountain is confident that the new DPI crossing methods are feasible, appropriate and adequately protective, Coldwater has yet to satisfy itself of the same and site-specific planning and engagement with Trans Mountain is ongoing.66 While DPI appears to be a better method to manage risks to groundwater resources than HDD (which would require drilling at a greater depth), DPI appears to be a relatively novel approach to river crossings.67 Careful consideration and planning, including consultation with Coldwater, is required.

59. Similarly, while Coldwater has completed a traditional land use study of the West Alternative, ground truthing continues and an archaeological impact assessment is not yet complete. Notably, Trans Mountain’s Variance Application does not suggest that the West Alternative would be subject to Condition 98, which would require Trans Mountain to file an updated plan for indigenous group participation in construction monitoring.68

60. In light of these outstanding concerns, the following Project Conditions should be included in an approval of the Variance Application:

• West Alternative Coldwater River Crossings:

a) Trans Mountain will continue site-specific planning and engagement with Coldwater Indian Band on the Coldwater River crossings;

65 Coldwater Evidence, PDF 21, paras 63-64, citing Appendix C, BC Groundwater Opinion (C12076-4) PDF 3-4 66 Trans Mountain Argument, PDF 14, para 49, citing responses to Information Requests and Trans Mountain’s Reply Evidence 67 While there are 42 references to horizontal directional drill or HDD in the Commission’s Reconsideration Report for the Project, there is only a single mention of Direct Pipe Installation, which was to be evaluated for the Sumas River crossing pursuant to Condition 67 (Reconsideration Report, p. 573, PDF 582) 68 Variance Application, Appendix D (PDF page 287); Reconsideration Report, p. 311, PDF 320, p. 582, PDF 593 16

02013296 b) Trans Mountain will provide an update to the Commission by August 9, 2021 on the status of site-specific planning with Coldwater and whether Coldwater’s site- specific concerns have been addressed. If Coldwater’s concerns remain unresolved Trans Mountain will provide a further update to the Commission by October 8, 2021;

c) Trans Mountain must file with the CER, at least one month prior to commencing construction of the West Alternative, a plan describing:

i) Coldwater’s participation in monitoring the construction of the two Coldwater River crossings, including a monitoring role for Coldwater’s technical advisors;

j) Any additional site-specific operation and mitigation measures or plans; and

k) A copy of the report will be shared with Coldwater at the time of filing;

d) All Condition Compliance Filings regarding the two Coldwater River crossings associated with the West Alternative [i.e. including updates to Condition 67 and 74 filings] will be provided to Coldwater Indian Band on the same day they are filed with the CER; and

e) Coldwater shall have ten (10) working days to provide the CER with comments, if any, on the adequacy of Trans Mountain’s Condition Compliance Filings.

• Coldwater participation in construction monitoring: Trans Mountain must file, at least 2 months prior to commencing construction of the West Alternative, a plan describing Coldwater Indian Band participation in monitoring activities during construction for the protection of traditional land and resource use along the West Alternative. The Plan must otherwise comply with Project Condition 98.

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02013296 PART 5 - ORDER SOUGHT

61. Coldwater respectfully submits that:

(a) Trans Mountain’s Variance Application should be approved to avoid unnecessary risks and impacts to Coldwater’s residential community, including the Reserve Aquifer and drinking water on IR 1; and

(b) The West Alternative should be subject to the additional conditions set out at paragraph 60 of these submissions.

All of which is respectfully submitted this 9th day of June, 2021.

EMMA K. HUME NATHAN E. HUME Ratcliff LLP Ratcliff LLP Counsel for the Coldwater Indian Band Counsel for the Coldwater Indian Band

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02013296 LIST OF AUTHORITIES

Tab Cases 1. Clyde River (Hamlet) v Petroleum Geo-Services Inc., 2017 SCC 40 2. Coldwater Indian Band v Canada (Attorney General), 2020 FCA 34 3. Tsilhqot’in Nation v British Columbia, 2014 SCC 44 4. Tsleil-Waututh Nation v Canada (Attorney General), 2018 FCA 153 Other Sources 5. House of Commons, Office of the Auditor General of Canada, “Chapter 5: Drinking Water in First Nations Communities” in Report of the Commissioner of the Environment and Sustainable Development to the House of Commons (29 September 2005) 6. UN Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted Under Articles 16 and 17 of the Covenant: Concluding Observations of the Committee on Economic, Social and Cultural Rights: Canada, UNESCOR, 36th Sess, UN Doc E/C.12/CAN/CO/4 and UN Doc E/C.12/CAN/CO/5 (2006) 7. The Human Right to Water and Sanitation, UNGA Res 64/292 8. “National Commission Inquiry on Indian Health Policy: A Compilation of Health Policy Papers” in Public Policy and Aboriginal Peoples, 1965-1992: Summaries of Reports by Federal Bodies and Aboriginal Organizations (1994), vol 2 (Ottawa: Supply and Services Canada, 1994) 226 9. David R. Boyd, “No Taps, No Toilets: First Nations and the Constitutional Right to Water in Canada” (2011) 57:1 McGill LJ 81

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