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Hearing Order OH-001-2014 Board File: OF-Fac-Oil-T260-2013-0302

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Hearing Order OH-001-2014 Board File: OF-Fac-Oil-T260-2013-0302 Hearing Order OH-001-2014 Board File: OF-Fac-Oil-T260-2013-0302 NATIONAL ENERGY BOARD IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N-7, as amended, (“NEB Act”) and the Regulations made thereunder; AND IN THE MATTER OF the Canadian Environmental Assessment Act, 2012, S.C., c. 19, s. 52, as amended and the Regulations made thereunder; AND IN THE MATTER OF an application by Trans Mountain Pipeline ULC as General Partner of Trans Mountain Pipeline L.P. (collectively, “Trans Mountain”) for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part III of the NEB Act. WRITTEN ARGUMENT OF KWANTLEN FIRST NATION Counsel for Kwantlen First Nation: Tim Dickson Farris, Vaughan, Wills & Murphy LLP 2500-700 West Georgia St. Vancouver, BC V7Y 1B3 Tel: 604 661 9341 Fax: 604 661 9349 Email: [email protected] - 2 - Part I: Overview .................................................................................................................3 Part II: Constitutional and Statutory Framework ...........................................................4 A. Aboriginal rights and title ........................................................................................4 B. The duty to consult and accommodate.....................................................................9 C. Section 35 limitations on the Board’s discretion under the NEB Act ....................13 1. The standards by which Aboriginal rights and title must be considered ..................................................................................................17 2. The Board’s Rio Tinto duty........................................................................21 Part III: Kwantlen’s History and Aborignal Rights and Title ........................................26 A. An overview of Kwantlen’s evidence in this proceeding ......................................26 B. A brief introduction to Kwantlen’s culture and history .........................................28 C. Kwantlen’s use and occupation of its territory ......................................................32 D. Conclusions regarding Kwantlen’s Aboriginal rights and title ..............................37 Part IV: The TMEP’s Impacts on Kwantlen’s Title and Rights ....................................40 A. Kwantlen people’s attachment to their territory ....................................................40 B. Kwantlen’s history after 1846 ................................................................................42 C. Kwantlen people’s concerns about the TMEP in light of the cumulative effects to their territory ........................................................................58 Part V: The TMEP’s Adverse Impacts on Kwantlen’s Rights and Title .....................63 Part VI: This Proceeding and the Crown’s Duty to Consult and Accommodate .......................................................................................................66 A. This proceeding is incapable of discharging the Crown’s duty to consult and accommodate ......................................................................................67 B. Even the subsequent Phase III consultation, as planned, will not discharge the Crown’s duty ...................................................................................73 C. The Board must recommend against approval of the application..........................74 Part VII: The Breaches of Kwantlen’s Aboriginal Rights and Title Cannot be Justified ..............................................................................................74 Part VIII: The Panel Must Recommend Refusal ................................................................77 Part IX: Conditions .............................................................................................................78 - 3 - PART I: OVERVIEW 1. Kwantlen First Nation (“Kwantlen”) has for generations beyond counting had its homeland on both sides of the lower Fraser River. Recognized traditionally as one of the larger First Nation communities along the lower Fraser, Kwantlen’s territory stretches from Sumas Mountain in the south-east and past New Westminster in the west. Kwantlen relied on its territory, including the Fraser and its tributaries, for a wide variety of purposes for millennia prior to contact with Europeans; it established significant and complex cultural, social and utilitarian connections to the natural environment and local ecosystems within its territory; and it exclusively occupied extensive portions of its territory when the Crown asserted sovereignty in 1846. 2. Kwantlen intervened in this proceeding to ensure that its Aboriginal rights and title were properly taken into account by the National Energy Board (the “Board”) when making its recommendations to the Governor in Council as to whether a certificate under s. 54 of the National Energy Board Act (the “NEB Act”) be issued to Trans Mountain Pipeline ULC (“Trans Mountain”) in respect of the Trans Mountain Pipeline Expansion Project (“TMEP”). 3. As set out below, Kwantlen has grave concerns about the impacts the TMEP will have on its rights and title. After assessing the TMEP as best as it could given the woefully insufficient capacity funding it was provided, Kwantlen has concluded that the risks the TMEP poses to its territories, lifeways, connections to the natural world, and its people in both current and future generations are far too great, and it therefore opposes the issuance of a s. 54 certificate. 4. The federal Crown has advised that it intends to rely upon this proceeding to the extent possible to fulfill its duty to consult and accommodate, and Kwantlen has therefore participated in this proceeding as best as it was able. The funding available to Kwantlen, however, was far too limited to enable it to obtain the expert technical advice and opinion evidence that is essential for meaningfully participating in the review of a project as technical and complex as the TMEP. Despite the TMEP’s use of and risks to Kwantlen’s territory, and notwithstanding the enormous sums of money Trans Mountain says it will - 4 - spend on construction and the federal government will receive in tax receipts, Kwantlen has been effectively precluded from meaningfully participating in the technical review of the TMEP. 5. Kwantlen has therefore largely confined its efforts to submitting evidence of its Aboriginal rights and title that will be adversely impacted by the TMEP, and providing a general overview of and context for the reasons for its opposition to the project. Kwantlen calls upon the Board to give proper effect within this proceeding to that evidence of Kwantlen’s Aboriginal title and rights. The submissions that follow are intended to provide a roadmap to the Board as to how that must be done. PART II: CONSTITUTIONAL AND STATUTORY FRAMEWORK A. Aboriginal rights and title 6. Section 35 of the Constitution Act, 1982 provides that “[t]he existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.”1 7. Aboriginal peoples occupied these lands long before Europeans settled in North America. Aboriginal rights exist in Canadian law, not as a result of governmental recognition, but because they were not extinguished upon British or French assertions of sovereignty. As Chief Justice Lamer stated in Van der Peet:2 [T]he doctrine of aboriginal rights existed, and is recognized and affirmed by s. 35(1), because of one simple fact: when Europeans arrived in North America, aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they have done for centuries. 8. Aboriginal rights are sui generis in nature. They arise from the prior occupation of land, and from the sovereign Aboriginal peoples’ control of the land. They are constitutionally protected and afforded priority through section 35. As such, the honour of the Crown is engaged in its dealings with Aboriginal peoples. The words stated in s. 35 that Aboriginal 1 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1, s. 35(1). 2 R v Van der Peet, [1996] 2 SCR 507 at para 30, 137 DLR (4th) 289 [Van der Peet] [emphasis in the original]. - 5 - rights are hereby “recognized and affirmed” must be construed in a liberal and purposive manner.3 9. Aboriginal rights are said to fall along a spectrum with respect to their connection to the land.4 At one end are practices and customs that are integral to the distinctive Aboriginal group asserting the right. In the middle are activities that must take place on the land and are intimately related to it and are site-specific. At the far end lies Aboriginal title, which is a right to the land itself.5 10. The test for Aboriginal rights is whether, prior to the Aboriginal group’s contact with Europeans, the practices or customs existed and were integral to the distinctive culture of the Aboriginal group. The “integral to the distinctive culture” requirement means that the practices or customs were of central significance to the group’s culture. They do not have to have been distinct or unique to that particular Aboriginal group, but it is not sufficient if the practices in question only took place occasionally. Practices that were undertaken for the purposes of survival can satisfy the requirements.6 11. If the evidence supports the existence of such distinctive practices, then the question is whether the contemporary practice for which the protection of s. 35 is claimed bears
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