Lax Kw'alaams Band Lax Kw’alaams Band 206 Shashaak Street, 100 1st Ave East Lax Kw'alaams BC V0V 1H0 Prince Rupert BC V8J 1A6 Telephone:(250) 625-3293 Telephone: 250-627-5733 Fax: (250) 625-3246 Fax: 250-627-5933

SUBMISSION TO PARLIAMENTARY STANDING COMMITTEE ON TRANSPORT, INFRASTRUCTURE, AND COMMUNITIES

concerning Bill c-48: An Act Respecting the regulation of vessels that transport crude oil or persistent oil to or from ports or marine installations located along British Columbia’s north coast (Oil Tanker Moratorium Act)

November 3, 2017

PRESENTED BY

MAYOR JOHN HELIN

ON BEHALF OF LAX KW’ALAAMS BAND

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INTRODUCTION Lax Kw’alaams is one of the largest bands in British Columbia, with a population of 3,872 members. Lax Kw’alaams’ holds unceded title to territories extending from the Skeena River valley to the Nass River valley, including all the coastal land, inlets, islands and waters around the Prince Rupert harbour to the Alaska border. Lax Kw’alaams is descendants the nine Coast Tsimshian tribes, 82% of whom are now affiliated with the Lax Kw’alaams band, the remainder with Metlakatla First Nation.

For centuries, the Lax Kw’alaams people have relied on the ocean for their livelihood and sustenance. However, as access to marine resources has been curtailed by government regulation, shrinking access to the fishery, and unfair fisheries enforcement measures, Lax Kw’alaams is increasingly dependent on land-based economic opportunities. Lax Kw’alaams is now struggling to find alternatives that will allow its members to participate in the modern economy within the territory.

Aboriginal Title

The federal government has long acknowledged Lax Kw’alaams title to the territory surrounding Prince Rupert Harbour. Lax Kw’alaams Aboriginal rights to fish and navigate the waters in the area are also well recognized. Lax Kw’alaams territorial claim includes the ocean, which has been the centre of culture and economy for centuries. Since the Delgamuuk decision, the courts have held that with Aboriginal title, comes the right to use the land for a variety of purposes, including for non-traditional purposes. The Supreme Court of Canada in Tsilhqot’in reiterated this characteristic, affirming that the right to receive economic benefits from the land is an incident of title.

The Crown must consult on any decision that could potentially have a direct or indirect impact on Aboriginal title or rights. While Lax Kw’alaams appreciates that Parliament is free to draft and enact legislation as it sees fit, such legislation should be consistent with the duty to consult; particularly where the legislation targets specific areas that are subject to Aboriginal title.

It is Lax Kw’alaams’ assertion that this Bill is targeted at areas that are subject to Aboriginal title, and that it could, at the very least, have a profound impact on how Lax Kw’alaams is able to use its coastal lands for economic benefit.

Reconciliation and a New Relationship

On July 19, 2017, the Government of Canada stated its commitment to reconciliation and establishing a new relationship with First Nations. This was described in Point 2 of the Federal-Indigenous Relationship Principles as follows: Reconciliation is an ongoing process through which Indigenous peoples and the Crown work cooperatively to establish and maintain a mutually respectful framework for living together, with a view to fostering strong, healthy, and sustainable Indigenous nations within a strong Canada.

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Principle 4 states that The Government of Canada recognizes that Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.

In committing to meaningful engagement, the Government of Canada committed to ensuring that indigenous peoples and their governments have a role in public decision-making, and to looking for opportunities to build processes and approaches aimed at securing consent in relation to the use of Aboriginal title lands and territories. (Principle 6). Canada also committed to collaborate with indigenous nations to develop a new fiscal relationship that “promotes a mutually supportive climate for economic partnership and resource development.” (Principle 8)

Lax Kw’alaams welcomes these commitments, and is eager to work with the Government of Canada. It was therefore disheartening that this Bill, that is directed at Lax Kw’alaams’ territories, is being introduced without prior informed consent or even adequate consultation and input from Lax Kw’alaams.

Modernization of the Economy (Economic Diversification)

As the furthermost community on the northern coast, Lax Kw’alaams’ strategic location offers many opportunities for future development. Situated on the Pacific, Lax Kw’alaams lies at the end of a rail corridor from which goods are shipped to international markets. Lax Kw’alaams recognizes the need to leverage this to its advantage.

In the latter part of the last decade numerous LNG projects were considering making multi- billion-dollar investments in Lax Kw’alaams’ territory. With eight proposed for the port area, Lax Kw’alaams spent the last six years actively engaged in environmental assessments. While most of the LNG projects have recently gone dormant or been withdrawn, a positive outcome for Lax Kw’alaams was the opening of new economic ventures, new partnerships with service companies working on port projects, and the negotiation of jobs and job-training related to the various LNG projects.

The experience also facilitated an internal discussion of options for the modernization of Lax Kw’alaams’ economy. The conclusion of these discussions affirmed that Lax Kw’alaams’ members see the need to diversify how Lax Kw’alaams land and territory is used so as to secure economic prosperity for future generations. The membership affirmed the need to entertain opportunities pertaining to petroleum products provided such projects are undertaken in environmentally responsible ways.

It is estimated that marine trade employs approximately 250,000 Canadians and injects more than $25 billion to Canada’s economy, but few of those benefits to Lax Kw’alaams people. With the decline in LNG related projects, Lax Kw’alaams must now look to other potential options for economic viability. Government restrictions, such as the targeted shipping restrictions identified in this Bill, could detrimentally impact on this.

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The Government of Canada and Lax Kw’alaams have the common goal of ensuring that economic activities undertaken in the region are conducted in an environmentally responsible manner. Lax Kw’alaams in engaged in a number of processes with the Government of Canada aimed at actualizing the New Relationship. One such process is the Reconciliation Framework Agreement For Bioregional Oceans Management And Protection. The purpose of that framework is to “facilitate reconciliation by helping the Parties reach new shared governance and management arrangements or agreements through discussion, exploration, and agreement on identified subject areas” which include shared governance, marine management and furthering economic opportunities on the Pacific North Coast. In addition, Lax Kw’alaams has been invited to engage in a review of the proposed Pilotage Act.

The Oceans Protection Plan Process

On November 7, 2016, the Prime Minister announced a $1.5 billion national Oceans Protection Plan to improve marine safety and responsible shipping, protect Canada's marine environment, and offer new possibilities for Indigenous and coastal communities. The Oceans Protection Plan is stated to have four main priority areas: • creating a world-leading marine safety system that improves responsible shipping and protects Canada’s waters, including new preventive and response measures; • restoring and protecting the marine ecosystems and habitats, using new tools and research, as well as taking measures to address abandoned boats and wrecks; • strengthening partnerships and launching co-management practices with Indigenous communities, including building local emergency response capacity; and, • investing in oil spill cleanup research and methods to ensure that decisions taken in emergencies are evidence based.

The Plan also recognizes that Indigenous coastal communities share ties to Canada’s oceans that span generations, relying on them as a source of livelihood, food security, and valuable transportation routes. The Oceans Protection Plan provides Indigenous coastal communities with new opportunities to protect, preserve, and restore Canada’s oceans and sea routes.

The Government of Canada recognizes that it needs the traditional knowledge and expertise of Canada’s Indigenous peoples and coastal communities to protect its coasts and waterways more efficiently. The Oceans Protection Plan acknowledges that Indigenous communities are long-standing safeguards of Canada’s waters, often being the first to respond to marine emergencies and suffering the most a marine pollution incident occurs.

Having navigated the waters of the northern coast for centuries, Lax Kw’alaams, as with other coastal Indigenous communities, has insights and expertise that would enable more effective response and protection of our coasts. Their partnership in the Oceans Protection Plan is a critical element of Canada’s marine transportation system.

Emergency Response and Waterways Management

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In accordance with the Oceans Protection Plan, the Government of Canada expects to partner with Indigenous and coastal communities and seek their advice in a number of areas, including: • understanding the combined effects of shipping; • creating local vessel control areas to minimize safety risks and/or environmental impacts; • updating and modernizing regulations and other tools to better respond to community issues related to marine traffic; • setting habitat restoration priorities and taking the most appropriate measures when monitoring clean-up, in the event of a spill; and • developing training programs to increase participation of Indigenous community members and women in marine safety jobs.

It is premature to press forward with Bill C-48 without waiting for the results of that planning process.

A Reasonable Compromise: Redefined Restriction Area

As noted earlier Lax Kw’alaams is located adjacent to the Alaska, where no similar restrictions on the shipment of petroleum products apply. Alaskan residents can freely ship through Dixon Entrance, which is the same route that ships leaving ports in Lax Kw’alaams’ territory would use.

The U.S. considers the maritime boundary in Dixon Entrance as their “territorial waters”. This border follows a line equidistant between the southern Alaskan Islands and Haida Gwaii (Queen Charlotte Islands). Rather than impose restrictions that will impede potential opportunities for Lax Kw’alaams, Bill C-48 could define the northern boundary of the oil tanker moratorium zone in roughly the same location in Dixon Entrance as is shown as the maritime boundary on American charts. This is, in fact, already the northern boundary adopted by the Oil Spill Response Organization appointed for this area pursuant to Canada Shipping Act.

The area in question is roughly that which is shaded in “Figure 2: Dixon Entrance” in the United States Coast Pilot, 2003, chapter 8, page 62. A copy is enclosed in this Brief as tab 3. Also included in tab 3 is a U.S. chart of the area. The equidistant line is shown by fish symbols. There is no U.S. legislation prohibiting the use of this marine area as an international oil transportation route.

Alternatively, a line could be established along 54 degrees, 30 minutes north latitude so as to keep shipping well north of Haida Gwaii.

Ship Safety in Dixon Entrance

To put this issue in proper perspective, the Dixon Entrance waterway is far less hazardous than waterways around the world that carry vast amounts of oil tanker traffic, such as the Bosphorus, Strait of Dover and Strait of Malacca. It is clearly less hazardous than the shipping

5 November 3, 2017 BILL C-48 lanes leaving ports such as Rotterdam, Singapore and Vancouver. The route for the oil tankers leaving the Kinder Morgan terminal in Burrard Inlet proceeds under the Second Narrows and First Narrows bridges and though an intricate archipelago of islands in the Strait of Georgia. The risks inherent in shipping through Dixon Entrance are miniscule compared with those oil tanker routes.

The north coast has been ignored by the Canadian government in many respects, ship safety being one of them. In the Strait of Juan de Fuca a cooperative vessel management scheme exists with marine traffic separation lanes. It is set out in Rule 10 of the International Regulations for Preventing Collisions at Sea. There is no good reason why the same could not be developed for Dixon Entrance. A map of the Juan de Fuca traffic management system is in tab 4.

The fact that the marine boundary in Dixon Entrance is disputed as between the U.S. and Canada would not stand in the way of a cooperative arrangement between the two countries for ship safety in Dixon Entrance. There is already a cooperative arrangement in place for electronic charts in the area.

Conclusions and Recommendations

Like all coastal First Nations, Lax Kw’alaams is very concerned with protecting the ecology of our coastal lands. This includes provisions to ensure that no oil spills occur. However, nowhere on the east coast or on the southern Pacific coast of Canada is this done by simply shutting out opportunities for economic development and shipping.

Rather, economic activities are permitted with the imposition of stringent safety measures, safe shipping routes, proper escort tugs and proper oil spill response vessels in adjacent ports.

Shutting out oil tankers imposes an unfair limitation on Lax Kw’alaams’ prospects of economic development, and unfairly discriminates against one region of the country. Furthermore, less drastic solution may be found through the cooperative processes that are getting underway. As such, Lax Kw’alaams recommends that Bill C-48 • be tabled until the conclusion of the Reconciliation Framework Agreement For Bioregional Oceans Management And Protection, and other processes already underway under the Oceans Protection Plan, and Pilotage Act consultation; and • include a northern boundary for the oil tanker moratorium area that is fixed at 54 degrees, 30 minutes north latitude pending development of a lane separation scheme for oil tankers in Dixon Entrance equivalent to that in the Strait of Juan de Fuca.

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