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Musqueam Indian Band MUSQUEAM INDIAN BAND <contact information removed> <contact information removed> TELEP<contactHONE: information removed> FAX: November 15, 2017 Jocelyne Beaudet Chairperson Roberts Bank Terminal 2 Review Panel Dear Ms. Beaudet, Re: Roberts Bank Terminal 2 (RBT2) - Musqueam Knowledge and Use Study of the Roberts Band Terminal 2 Project Introduction On behalf of the Musqueam Indian Band (“Musqueam”) please find attached a copy of the Musqueam Knowledge and Use Study of the Roberts Band Terminal 2 Project (“the Study”). We are providing you with our own self-funded Study to ensure that you are provided with substantive community-based research that assesses the interactions between all components of the Roberts Band Terminal 2 Project (“the Project” or “RBT2”) and Musqueam rights and current use of lands and resources for traditional purposes (“CULRTP”). Due to lack of funding from the Proponent and the inadequate and flawed assessment of Musqueam CULRTP that appears in the Vancouver Fraser Port Authority’s (“VFPA” or “the Proponent”) Environmental Impact Statement (“EIS”), we have been compelled to rely upon our limited resources to undertake this supplementary work. The Study concludes that the Project is likely to result in residual adverse effects to Musqueam lands and waters, use of lands and waters, practice of Aboriginal rights (including culture), and Musqueam well-being. In addition, the Study acknowledges that a cumulative effects assessment is required before the severity of potential adverse impacts on Musqueam’s rights-based activities and culture can be properly characterized. We request that you accept this Study and its findings to inform your evaluation of the Project’s potential impacts on Musqueam rights and CULRTP. Study finds that Project has clear potential to infringe Musqueam rights The Study shows that Musqueam members use or have used the Project footprint for a range of rights-based activities, including fishing, collecting shellfish, hunting, and harvesting plants. Additionally, there are numerous areas within the Project Local Study Area (LSA) and Regional Study Area (RSA) used for the inter- and intra-generational transfer of knowledge and skills that support the cultural continuity of Musqueam. Musqueam site-specific values were found to be most dense in the northern portion of the Study Area, especially around the site of the proposed RBT2 terminal and along the coast between the Project footprint and Point Grey, as well as inland along all arms of the Fraser River. Further, many project-impact pathways, such as disruption of migration routes, disruption of tidal flows, habitat impacts from sedimentation, were identified in relation to priority fish species of special cultural concern. The Study provides detailed findings that identify project/use interactions and impact pathways for the following Musqueam CULRTP valued components (VCs): • Fishing (e.g., salmon, crabs, eulachon, white sturgeon, prawns); • Coastal harvesting (e.g., shellfish and subsistence and medicinal plants); • Hunting (e.g., ducks, geese, pheasants); and • Cultural Continuity (e.g., identity, sense of place, knowledge transmission). The Study concludes that the interactions are likely to result in adverse effects on all Musqueam CULRTP VCs and Aboriginal rights, including Musqueam’s proven fishing rights (i.e., Sparrow). Inadequacy of EIS to assess Project impacts on Musqueam CULRTP We undertook the Study due to the inadequacy of the EIS to utilize a credible methodology and approach for assessing project impacts to our rights and CULRTP. As detailed in our November 3, 2017 memo to the Panel (see enclosed), Section 32 of the EIS, Potential or Established Aboriginal and Treaty Rights and Related Interests, Including Current Use of Lands and Resources for Traditional Purposes (“Section 32”), is an unreliable assessment of Musqueam’s CULRTP. Flaws in the Proponent’s CULRTP assessment for Musqueam include, but are not limited to, the following: 1. No meaningful research into characterizing “current conditions” baseline information; 2. Omission of the current conditions of Musqueam’s CULTRP, thereby grossly underestimating existing total effects loading on Musqueam CULRTP within the Project LSA and RSA; 3. Inappropriate reliance upon non-CULRTP VCs as proxies for CULRTP effects, rather than basing its analysis on the interactions between Musqueam VCs and Project components; 4. Analysis omissions of Project impact-pathways and adverse interactions with Musqueam rights-based activities; 2 5. Failure to take into consideration how project intersects with Musqueam rights, rights- based harvesting and cultural activities. 6. The generic analysis found in subsection 32.6.2, not specific to Musqueam, is inappropriately substituted as the impact analysis for Musqueam in subsection 32.3.2.2; 7. No Musqueam-specific project-CULRTP interactions have been included in the analysis that informs the conclusions; 8. Flawed identification of mitigation: Using a methodologically unsound practice, the Proponent has treated its own yet-to-be defined proposal for “future discussions” related to consultation and accommodation as a form of mitigation that the Proponent suggests would, sight unseen, offset all adverse residual effects on Musqueam CULRTP (and related rights-based practices);1 and 9. Incorrect analysis characterizing post-mitigation residual effects of the Project. In addition to failing to document direct project-specific Project Facility residual impacts on Aboriginal rights and associated CULRTP, Section 32 also omits any assessment of cumulative effects, as required under the Canadian Environmental Assessment Act, 2012 (CEAA 2012) for assessing 5(1)(c) effects. It also fails to provide any “contextual” analysis related to the seriousness of adverse effects on Aboriginal rights or incorporate the Aboriginal perspective, as required under common law. In contrast to the failings of the CULRTP assessment in the EIS, the Study provides a Musqueam- specific analysis, based on interviews with over 30 community members, with consideration of the current context for Musqueam CULRTP, as well as a focus on the expected interactions between the Project and Musqueam rights-based harvesting and cultural activities. Consideration of cumulative effects on CULRTP and Aboriginal rights and interests We maintain that marine shipping effects, facility-specific effects, and other cumulative effects causing agents must be considered in combination to understand the net effects on Musqueam rights and CULRTP. This pre-existing cumulative adverse impact context, and its implications for the ability of the receiving environment and our members to carry additional impact loading, has not been adequately captured in the work done to date by the Proponent on this Project. Rather, as noted above, the Proponent has ignored this context, effectively “skipping over” the EIS Guidelines requirements for: 1 “Port Metro Vancouver is working with Musqueam First Nation to draft Terms of Reference to guide future discussions related to accommodation for effects from the Project”, Section 32, p. 32-116. See also reference to the Proponent’s view that “the planned accommodation agreement with Musqueam” combined with other measures, will “be effective at addressing Project-related effects to Current Use access related to crab harvesting”, Section 32, p. 32-117. 3 • A cumulative effects assessment on Musqueam CULTRTP; • A significance determination on total Project-specific and cumulative effects on Musqueam CULTRTP; and • A proper consideration of the seriousness of adverse project-specific and cumulative effects on Musqueam Aboriginal rights. The scope of the Study that we have provided along with this letter has not included a cumulative effects assessment, but has strongly indicated the need for one. We therefore request that the Panel issue a formal Information Request to the Proponent to assess cumulative effects related Musqueam’s CULRTP, and that this request be required to be fully addressed by the Proponent prior to proceeding to public hearings. Until a cumulative effects assessment has been completed, neither the significance determination for Musqueam CULRTP nor the assessment of seriousness of impacts on Musqueam rights can be properly concluded upon. Closure Thank you for taking the time to review the Study and taking its findings into consideration in your evaluation of the Project’s potential impacts on Musqueam rights and CULRTP. Musqueam looks forward to working with the Panel in the coming months on this EA. In addition, in advance of the issuance of additional information requests to the Proponent, should you or other Panel members wish to meet to discuss any of the matters that we have raised in this letter, or if you have any questions, please don’t hesitate to contact me at <contact information removed> <email address removed> or by phone at or <contact information removed> Sincerely, <Original signed by> Dianne Sparrow Divisional Lead – Intergovernmental Affairs Musqueam Indian Band Technical Contact: Technical Contact: Kaitlan Lay,<email address removed> cc. Debra Myles, Review Panel Secretariat Analise Saely, CEAA, Crown Consultation Coordinator 4 David Grace, BC EAO Attachments: Musqueam Knowledge and Use Study of the Roberts Band Terminal 2 Project Memorandum to Panel, November 3, 2016, Effects on Aboriginal Rights/Current Use of Lands and Resources for Traditional Purposes 5 xʷməθkʷəy̓əm Musqueam Indian Band KNOWLEDGE AND USE STUDY PORT METRO
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