MUSQUEAM INDIAN BAND 6735 SALISH DRIVE VANCOUVER, B.C. CANADA V6N 4C4 TELEPHONE: 604 263-3261 FAX: 604 263-4212

June 15, 2015

Candace Anderson Crown Consultation Coordinator Canadian Environmental Assessment Agency 160 Elgin st., Ottawa, ON, K1A 0H3

Dear Ms. Anderson,

Re: Roberts Bank Terminal 2 Environmental Impact Statement Review for Completeness

Attached please find a copy of Musqueam Indian Band’s comments on the Roberts Bank Terminal 2 Environmental Impact Statement Review for Completeness. Please note that given time and resource limitations, Musqueam has been unable to conduct a fulsome completeness review of the draft EIS. Only a very limited budget was provided by the Agency to review the EIS, a massive undertaking, and this high level completeness review has exposed a large number of concerns not only in relation to the completeness of the EIS as against the EISG, but also concerns about the sufficiency of scope, VCs, baseline data collection, alternatives evaluation, and effects assessment proper, which will require a significant, multifaceted review by Musqueam if and when the EIS is accepted and the technical review begins. Absence of comment on any particular line item cannot be read as lack of concern with the completeness or sufficiency of the EIS treatment of that element of the EISG. Musqueam has not weighed in on the completeness of each line item in the EISG, only including those line items that it deems in this first pass to be deficient.

Musqueam would like to highlight that recent federal EA Panels and even non-panel reviews (e.g. Shell Jackpine; PNW LNG) have required assessments of effects on VCs like current use of lands and resources for traditional purposes (CULRTP) and other Section 5(1)(c) factors to be conducted on a “per First Nation” basis, and require the EIS to be revised accordingly. Musqueam requests direct consultation with the Agency regarding the need for adoption of CULRTP as a VC and implications for the defensibility of the EA if this is not a requirement put forward to the Proponent. It should also be noted through the revision of the EIS it was identified that most comments on VCs did not provide a clear correlation between specific VC-related concerns that are attributed to multiple FNs and specific basis for Musqueam concern. Musqueam should be provided with disaggregated information that provides basis for our specific concerns, separate from those of other First Nations.

Musqueam has been consistent in stating to both CEAA and Port Metro Vancouver that it has an established right to fish. There is a serious risk of causing potentially irreparable adverse effects to the territory and Musqueam’s ability to exercise its Aboriginal rights including the right to fish established by the Supreme Court of Canada in the Sparrow case. This is an issue that Musqueam has repeatedly brought to Port Metro Vancouver’s attention but that they prefer to ignore and to push Musqueam into the same category as other First Nations such as the Cowichan Tribes who have no established rights in the area. The list of First Nations that falls under Section 3 of the Proposed Consultation Work Plan is of great concern to Musqueam. The only First Nation that has a claim to be consulted at the same level as Musqueam based on their treaty rights, would be Tsawwassen First Nation. The other First Nations have only asserted rights.

Musqueam’s participation in this process is without prejudice to our Aboriginal rights and title including the established Aboriginal right to fish protected by section 35 of the Constitution Act and Musqueam fully reserves all its rights and remedies for any breach by the Crown including by the Canadian Environmental Assesment Agency, the federal Minister of the Environment, the provincial Minister of Envorinment and Port Metro Vancouver.

As a point of clarification, the underlined text included in the table is highlighting key phrases by Musqueam, not from the original EISG.

Sincerely,

Chief Wayne Sparrow Musqueam Indian Band

cc. Laura Strand, Manager Aboriginal Affairs, Port Metro Vancouver – [email protected]

Honorable Leona Aglukkaq, Federal Minister of the Environment – [email protected]

Honorable Mary Polak, Provincial Minister of the Environment – [email protected]

Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Participant: Chief Wayne Sparrow

Organization (if applicable): Musqueam Indian Band

General Comments: Please see comments entered in table below.

1. Underlined text in the table in the “EISG requirement” column is highlighting of key phrases in the EISG by Musqueam, not from the original EISG. 2. All references to “the Agency” in the table below are to the Canadian Environmental Assessment Agency.

Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Comments on Completeness of Information in the EIS

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information Section in EISg where Section of EIS information is where the Request for Why information required What is the requirement? information Issue - what is missing additional should be present should be information present

2.3 - Aboriginal Did proponent provide Musqueam Section 7.2; EIS suggests this is the Appendix 7.2-b The First Nations- Engagement Indian Band with opportunities to case, but Musqueam needs to be specific (each (Consultation learn about the project and its Appendix 7.2-A; has concerns about disaggregated to First Nation) Delegation to potential effects, make their the process not provide more context in which Proponent concerns known about the Section 8.1.1 - adequately addressing detail on the an issue is raised, through EISg) project’s potential effects and 8.1.3 Musqueam Aboriginal issues raised the specific discuss measures to mitigate these rights and title (including specific concerns (not a effects. concerns, in particular, language of generic the established fishing concerns) by each interpretation of right under Sparrow individual First it by the and the duty of the Nation. In Proponent), and Crown (including Port addition, all requests for Metro Vancouver) to Appendix 7.2-b changes in data justify any needs to identify collection, infringement. In any mitigation, analysis, addition, none of the monitoring, or mitigation and EIS was ground alternatives monitoring, truthed with proposed by First among other Musqueam prior to it Nations to issues, are not Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information being filed; this means overcome clear in the by definition that potential impacts, existing EIS body Musqueam had no and data text or advance opportunity collection and appendices. As a to even understand analysis “asks” of result, the EIS is the results of the each individual inadequate to effects assessment First Nation. This identify (results of which are revised “per First Musqueam’s provided for the first Nation” appendix main concerns or time in the draft EIS). then needs to be examine the In addition, the ground adequacy of the concerns of individual truthed/verified Proponent’s First Nations are by each First response to pooled and Nation prior to it same. This is genericized in the EIS, being filed into inappropriate as especially but not evidence. The the Crown’s duty limited to in Appendix same is required to justify any 7.2-b, meaning that of the list of proposed the specific concerns potential adverse infringement of of individual First effects on our established Nations are by no Aboriginal and Aboriginal fishing means identified or Treaty rights in right and to dealt with in the EIS. Section 32.3 and consult on the unilaterally Musqueam’s developed list of priority rights Aboriginal issues under the “PMV considers Constitution are to be specific to our Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information outstanding” in First Nation, and Section 32.3.3.4. not to be pooled into a generic analysis. More active, pre-filing, First Nations- specific ground truthing/verificati on is needed prior to the finalization of the EIS. 2.3 Did proponent work with Section 7.2; Musqueam had The Proponent In general, the Musqueam Indian Band to develop repeatedly requested did not accede to draft EIS, and the engagement approach? Appendix 7.2-A; a separate the Musqueam process with engagement/consultat request for a which it was Section 8.1.1 - ion/justification distinct and generated by the 8.1.3 process with the separate Proponent, Proponent due to the engagement/cons exhibits a “top- unique requirements ultation/justificati down, outside-in” related to on process, approach to EA, Musqueam’s making this an with the most established fishing outstanding issue sensitive right under Sparrow in the EA and a receptors (e.g., and the legal duty of breach of the Musqueam Indian the Crown (including Crown’s duty to Band) left on the Port Metro justify any outside looking Vancouver) to justify proposed in. This reflects Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information any proposed infringement of the weak end of infringement under Musqueam’s the engagement the Sparrow decision established spectrum and an of the Supreme Court Aboriginal right to unacceptably of Canada. This fish, and state poor one for a request has not been that Musqueam Project of this addressed by the requests the size, complexity Proponent and the Proponent to and potential for entire process has take proactive adverse effects ignored the decision steps to engage on Musqueam of the Supreme Court Musqueam in resources critical of Canada in Sparrow setting up a for the and other cases on customized meaningful section 35 of the consultation and practice of our Constitution Act 1982 justification Aboriginal rights. Musqueam’s process for the Above all, our participation has been Nation. Aboriginal rights without prejudice to and title must be its Aboriginal rights respected and and title and it protected reserves all its rights including by the and remedies for Crown breaches of those discharging its rights. Clearly, a duty to justify any separate justification proposed process should be infringement of established prior to our right to fish any further steps established by Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information being taken in this the Supreme review. Court of Canada in the Sparrow case and the process revised to conform to the Crown’s constitutional duties under section 35 of the Constitution Act 1982. This has not been done to date and all of our comments in this document and throughout the process are subject to the above comments. 2.3 Did Proponent provide Musqueam Section 7.2; Musqueam has not Please amend the The standard of Indian Band with timely access to been provided EIS to incorporate consultation and relevant information that permits Appendix 7.2-A; sufficient time to findings of accommodation proper understanding of the complete reports and finalized reports with Musqueam proposed project and to Section 8.1.1 - undertake a fulsome related to is at a very high 8.1.3 determination of its impacts on review of all relevant Musqueam level for all their community, activities and documentation current and impacts related Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information other interests? provided through the traditional use. to this project. process to date. Further the infringement of Musqueam’s established Aboriginal right to fish must be justified by the Crown (including Port Metro Vancouver) under the Sparrow test of justification. 2.3 Did proponent make reasonable Section 7.2; There is no evidence Please amend the efforts to integrate “traditional that ATK was EIS to identify Aboriginal knowledge” into the Appendix 7.2-A; considered by the whether and how assessment of environmental Proponent in its ATK and inputs impacts? Section 8.1.1 - conceptual level from affected 8.1.3 environmental First Nations was management planning considered by the See Section 17 or fish habitat Proponent in re: Fish Habitat compensation developing these Compensation planning. conceptual level Planning plans, and describe the See Section 33 Proponent’s re: commitments to Environmental engage affected Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information Management First Nations in Program further plan development.

3.2 Scope of Does the assessment include the Sections 8.1.5, The spatial scope is Please provide a Malfunctions and Assessment environmental effects of 8.1.9, 30.0 deficient: The revised accidents related malfunctions or accidents that assessment of project- assessment of to marine may occur in connection with the specific and effects of shipping and project and any cumulative cumulative effects (of accidents and terrestrial environmental effects that are marine and terrestrial malfunctions that shipping should likely to result from the project in shipping), including includes be addressed to combination with other physical effects of accidents assessment of better activities that have been or will be and malfunctions, effects along the understand the carried out? beyond the boundary marine cumulative of PMV jurisdiction transportation effects of the has not been included route and project. in the EA. This is not terrestrial an appropriate scope transportation for cumulative effects route. assessment, which should be VC-driven, focused on the territory or range of the VC and all causes of effects loading on same, not artificially Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information limited to the jurisdiction of PMV.

3.3.1 Valued Does the final list of VCs presented 8.1.2, Table 8-2 The list of VCs, sub- Please provide 1. These two Components in the EIS reflect the knowledge VCs and sub-VC information on species have acquired on the environment species does not the declining been through public and Aboriginal accurately reflect trajectory of experiencing consultations? Musqueam requests change on long-term post- for on sturgeon and sturgeon and contact declines eulachon to be eulachon, and the in population and treated as a sub-VC effects of further should be species of study, as project considered at well as on several development on high risk. other VCs of concern. the recovery of 2. Musqueam has these two species placed numerous of high concern requests on the to Musqueam. record for The assessment sturgeon and of past, current eulachon to be and future assessed, projects and including activities on these statements made species is of that the May 27, critical concern 2014 VC meeting held between Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information First Nations, PMV and the Crown.

3.3.1 Valued Does the final list of VCs presented 8.1.2, Table 8-2 The VC concerns of A list of all VCs This is a Components in the EIS reflect the knowledge each nation have been that were requirement of acquired on the environment lumped together. This requested by the EIS, and is through public and Aboriginal list does not indicate Musqueam is necessary to consultations? which specific VCs are required, as is indicate of concern to assessment of meaningful (i.e., Musqueam. each in a fulsome responsive) Moreover, key VCs manner in a inclusion of requested by revised draft EIS. Musqueam Musqueam, including perspectives in sturgeon and the scope of the eulachon, have been EA. omitted from final VC list. 3.3.1 Valued Does the final list of VCs presented 8.1.2, Table 8-2 Current use of lands Clarification is It is understood Components in the EIS reflect the knowledge and resources for required on (1) by Musqueam acquired on the environment traditional purposes how PMV that CEAA 2012 through public and Aboriginal (CULRTP) has not been assumed that requires the consultations? included as a VC in this CULRTP would assessment of EIS although not be considered CULRTP as a VC , Musqueam has clearly a VC in face of and therefore informed PMV that Musqueam requires Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information rights-based concerns; and (2) independent harvesting activities implications for studies to are of critical the assessment of characterize importance in this CULRTP given baseline assessment for that this EA has conditions, Musqueam. not treated project specific CULRTP as a VC. cumulative Musqueam calls effects and the for the Agency to significance of require a re- adverse effects. assessment of effects with CULRTP as a VC; if the Agency is not predisposed to this requirement, we call for direct consultation with the Agency so that Musqueam can properly illustrate the need for adoption of CULRTP as a VC, and outline the implications for the defensibility of Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information the EA if this is not a requirement put forward to the Proponent.

3.3.1 EIS will provide rationale for 8.1.2 No rationale has been A tabulated set of The rationale selecting these components as VCs Appendix 8-A provided in the EIS for responses to given for this and for excluding others will be the screening out of Musqueam exclusion of stated, including criteria used to candidate VCs requested for VCs Musqueam make each determination. (including critical VC and related Key requests for sub-components, and Indicators (KI) VCs/KIs such as VC sub-component should be sturgeon, species) requested by provided that eulachon, shrimp Musqueam, e.g., includes and octopus, i.e., exclusion of responses that lack of “sufficient Musqueam request are specific to site-specific data for sturgeon and Musqueam on presence and eulachon to be treated concerns, i.e., not habitat use at as VCs in the EA. lumped together Roberts Bank”, is with generic not credible. A responses lack of existing provided to other data is no basis nations. The for excluding a intention of this VC. The exercise will be – proponent should prior to the be required to determination of explain why a Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information whether the EIS is survey of existing complete or not – TK and historical to assess the biophysical credibility of the survey data has rationale for not been exclusion of what conducted on may be critical these species to VCs. Where the address data gaps explanations are and to indicate a not credible, trajectory of Musqueam will change regarding call upon the population Agency to abundances of withhold a finding these species. of completeness Proper until additional assessment on VCs can be adverse effects adopted and on CULRTP fulsomely cannot be integrated into a conducted revised EIS. without studies of these key species being undertaken. 3.3.1 Any comments received on a 8.1.1, 7.1.1, As the Proponent has 1. Please provide The Crown’s duty component that has not been 7.2.2, 7.3.2 and screened out a summary of to consult and included as a VC will be 7.0 Appendices, substantial comments Musqueam accommodate on summarised and addressed in this Appendix 8-A from Musqueam comments on impacts to Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information section. regarding candidate VCs, VC-sub- Musqueam rights VCs and VC- components, and title, as well subcomponent species process and as provide (for example, marine interactions, justification for VC sub-component disaggregated infringement of species of concern from those of established including eulachon, other First Musqueam sturgeon, octopus; Nations. fishing rights, terrestrial VC- should be based subcomponent species 2. Where the upon a (wildlife) of concern Proponent has meaningful including coastal black screened out assessment of tail deer), there should candidate VCs project-specific be a section in the EIS and VC- and cumulative that identifies how the subcomponent effects on species Proponent intends to species identified that are culturally otherwise address by Musqueam, important to project-specific and please provide Musqueam in the cumulative effects on how the context of rights- these VC- Proponent and based harvesting subcomponent species the Crown practices. that constitute the intends to basic condition otherwise requirements for address project- Musqueam to be able specific and to meaningfully cumulative exercise its Aboriginal effects on such rights and title. VC and VC- Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information However, the subcomponent proponent has only species. provided responses to aggregated “First Nation” concerns that do not explain how such impacts to species that are fundamental to the ability of Musqueam members to exercise their Aboriginal rights will be assessed. 3.3.1 The proponent will identify those 8.1.1, 7.1.1, The Proponent has Please provide a This EIS VCs, processes, and interactions 7.2.2, 7.3.2 and screened out summary of requirement is that were identified to be of 7.0 Appendices, substantial Musqueam necessary to hold concern during any consultation Appendix 8-A contributions from requests for VCs, the Proponent workshops or meetings held by the Musqueam regarding process and accountable to proponent. candidate VCs and interactions, responding in a sub-VCs. The disaggregated meaningful Proponent’s from those of fashion to assessment stands as other First Musqueam testimony to the Nations. The requests for the failure of its own Proponent’s inclusion of VCs, consultation process “determination” sub-VCs and sub- on VC: noted at left must VC species. “During PMV’s cons be put to the test ultation with Aborigi by the Agency Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information nal groups on pote and Musqueam ntial VCs (April with all to July 2014), information Aboriginal groups transparently provided input and displayed. asked questions. Through this process, PMV determined that the proposed VCs included the input provided by Aboriginal groups to identify specific components as either a VC, a sub- component, or a sub- component species or topic. As a result of this consultation, no additional VCs were included. 3.3.1 The proponent will indicate to 8.1.1, 7.1.1, Most comments on Provide whom these concerns (re: VCs, 7.2.2, 7.3.2 and VCs in EIS do not disaggregated processes and interactions) are 7.0 provide clear information that important and the reasons why, Appendix 8-A correlation between provides basis of including Aboriginal… specific VC-related Musqueam considerations. concerns that are concerns, attributed to multiple separate from FNs and specific basis those of other Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information for Musqueam First Nations. concern.

3.3.1 The proponent will indicate the 3.2, 7.0 Section 3.2 does not Please provide in The rationale for specific geographical areas or Appendices reflect any of the this section areas adhering to the ecosystems that are of particular information provided of concern that wording of the concern to interested parties, and by Musqueam have been EISG, to highlight their relation to the broader regarding geographical provided by geographic areas regional environment and areas and ecosystems Musqueam to of “particular economy. of particular interest date, as per the concern to to Musqueam. requirement of interested the EISG. parties” – in this case priority Constitutional rights holders – should be self- evident. 3.3.2 Spatial Spatial boundaries will be defined 8.1.3, Table 8-3 The section in the EIS Provide The EIS requires Boundaries taking into account as applicable referenced by the information the Proponent to the appropriate scale and spatial Proponent’s regarding how demonstrate how extent of potential environmental concordance table the definition of the development effects, community and Aboriginal (Section 8.1.3, Table 8- spatial of spatial traditional knowledge, current land 3) does not provide boundaries have boundaries took and resource use by Aboriginal any information incorporated into account groups, ecological, technical and regarding how the Musqueam Aboriginal land- Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information social and cultural considerations. definition of spatial traditional and marine based boundaries have knowledge, activities and incorporated traditional and resource use, as “community and contemporary well as Aboriginal Aboriginal traditional use information Traditional knowledge, current as well as Knowledge (ATK). land and resource use Musqueam by Aboriginal groups, ecological, ecological, technical technical and and social and cultural social and cultural considerations.” considerations. 3.3.2 The proponent is advised to 8.1.3 A number of Spatial boundary The exclusion of consult with federal and provincial Musqueam requests for project- terrestrial government departments and regarding spatial specific and components agencies, local government and boundaries have been cumulative (increased rail Aboriginal groups, and take into ignored by the effects on key VCs and truck traffic, account public comments when Proponent, and are such as marine construction- defining the spatial boundaries not included in the resources and related impacts used in the EIS. assessment of VCs CULRTP should such as storage critical to addressing account for need and stages sites) Musqueam concerns. for an adequate and inter-related For example, the spatial boundary portions of the assessment of marine to consider the aquatic CULRTP has not been effects of linear environment assigned a spatial project (e.g., fish that boundary that components, migrate and feed accounts for effects on both marine and in vicinity of mobile species, terrestrial, Roberts Bank and Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information especially salmon and (marine shipping, the Fraser River) other culturally rail and road that are affected important species of traffic), as well as by marine fish. The result is that the project- shipping from the effects on salmon (and specific and spatial other fish) harvesting cumulative boundaries of this in Canoe Passage have effects (including EA precludes not been adequately noise and proper considered in this EA. vibration effects assessment of which are not project-specific limited to the and cumulative LAA) on mobile effects on marine species Musqueam (e.g. fish, CULRTP, migratory birds). Aboriginal rights, title and interests. 3.3.3 Temporal Community and Aboriginal 8.1.3 Section 8.1.3, as well Please provide Requirement of Boundaries traditional knowledge should as corresponding information the EIS factor into decisions around subsections indicating showing how Guidelines. appropriate temporal boundaries. how spatial Musqueam ATK Appropriate boundaries were has factored into temporal developed for each decision on boundaries are VC, omit any reference temporal essential for to how ATK has boundaries, and proper project- factored into also provide specific and determination of rationale where cumulative temporal boundaries. Musqueam effects Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information advice on assessments. temporal boundaries have been received but not incorporated into the EA. 4.1 Agency Did the Proponent consult relevant 6.5, 7.1, 7.1.2, EIS is missing Provide details on Proponent should Guidance Agency Policy and Guidance on 7.2, 8.0, reference to CEAA Proponent’s use refer and consult topics to be addressed in the EIS or Appendices 6-B, 2012 Aboriginal of the the updated consult with federal authorities 6-C Traditional Knowledge consultation to guidance on the (see section 4.4.1) during the Reference Guide. the following use of Aboriginal planning and development of the documents: Traditional EIS materials? Missing reference to 1. “Reference Knowledge in CEAA 2012 version of Guide CEAA 2012. Technical Guidance for Considering In the EIS, the Assessing Physical and Aboriginal Proponent refers Cultural Heritage or Traditional to the 2013 any Structure, Site or Knowledge in archived version. Thing that is of Environmental Historical, Assessments Proponent should Archeological, Conducted under refer and consult Paleontological or the Canadian the updated Architectural Environmental guidance on Significance under the Assessment Act, assessing physical Canadian 2012” (March and cultural Environmental 2015) heritage or on Assessment Act, 2012 any structure, site 2. Technical or thing that is of Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information Guidance for historical, Assessing Physical archaeological, and Cultural paleontological or Heritage or any architectural Structure, Site or significance. In Thing that is of the EIS, the Historical, Proponent refers Archeological, to the 2014- Paleontological or archived version. Architectural Significance under the Canadian Environmental Assessment Act, 2012 (March 2015)

As indicated above and repeatedly advised throughout the process, Musqueam has an established right to fish under the Sparrow Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information decision and any proposed infringement such as the Project must be justified by the Crown (including Port Metro Vancouver). Musqueam also has a right to be consulted and accommodated under the Haida decision. The Agency Policy and Guidelines cannot override these constitutional duties of the Crown. 4.2 Study In describing methods, the 8.1.1 - 8.1.4, These sections do not Please indicate Musqueam Strategy and proponent will document how it 8.1.8 indicate how the sections of the EIS traditional and Methodology used scientific, engineering, Proponent used where the local knowledge traditional, and local knowledge to Musqueam traditional Proponent is a critical reach its conclusions. and local knowledge indicates how component of to reach its Musqueam understanding conclusions on traditional and the marine and Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information significance. local knowledge terrestrial has been used to environmental reach significance within the Project determination or, area. An if such explanation of information is not how this present, revise information used the EIS in determining accordingly. significance of adverse effects on VCs is an EISG requirement. 4.3 The proponent will ensure that 7.2, 7.3, Musqueam had Please provide a Musqueam has INTEGRATION public and Aboriginal concerns are Appendices 7.2- requested that the (disaggregated) established OF EA, well documented in the EIS. A, 7.2-B, 7.3-B, Proponent meet one- clear listing of all fishing rights that ABORIGINAL 8.1.1 to-one to discuss Musqueam are at an AND PUBLIC Musqueam concerns concerns with the unacceptable risk CONSULTATION related to the Project EA process and of severe INFORMATION and EA process. To the Project to infringement by date the process of date. If such the Project. consultation, largely information is not Infringement based on available due to justification legal unmanageably large aggregated requirements “working groups” has meetings and stemming from not met Musqueam insufficient the Sparrow requirements for information decision, which meaningful collection by the require deep consultation or a Proponent, the consultation and Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information meaningful CEA Agency accommodation, assessment that will should require and a fulsome meet the requirement the Proponent to justification of of any infringement undertake infringements on justification. This additional one-to- Musqueam rights, concern, previously one meetings require one-to- communicated to with Musqueam one meetings PMV, has not been prior to the with Musqueam. provided in Section 7.2 acceptance of the or associated EIS as complete appendices. The by the CEA “lumping” of Agency staff and Musqueam together Review Panel. with other Aboriginal and non-Aboriginal groups into working group meetings is paralleled by similar lumping of Musqueam comments together with other “Aboriginal groups” in the EIS. Neither approach is acceptable or in keeping with the requirements of the EIS Guidelines or deep consultation and Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information accommodation or the duty to justify a proposed infringement of Musqueam’s established Aboriginal right to fish. 4.4.2 Agreement should be obtained 7.2.1 Use, management, Please confirm Proponent should from Aboriginal groups regarding and protection of ATK the Access clarify on the the use, management and Agreement Access protection of their existing between Agreements (use, traditional knowledge information Proponent and management, during and after the EA. Musqueam and protection) of Musqueam ATK during and after the EA to ensure confidentiality 6.2 Should include any treaty or self- 6.3 Although not a Add “Other Sparrow (1990) REGULATORY government agreements with negotiated regulatory decision has FRAMEWORK Aboriginal groups that are agreement, reference considerations” established a set AND THE ROLE pertinent to the project or EA to Sparrow decision subsection that of legal OF legal framework for refers to R v. requirements GOVERNMENT consultation, Sparrow (1990), that are specific infringement as well as related to addressing justification and fishery Musqueam accommodation, and agreements establish fishing any related fisheries between rights. Existing management Musqueam and relationships and Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information agreements, should be DFO. (e.g., agreements included here to Comprehensive should be noted identify Crown Fisheries in this section. recognition of Agreement Musqueam fishing between DFO and rights. Musqueam Indian Band) 7.2 PROJECT Sufficient information will be 8.0, 8.1.1, 7.2, This section (8.1.1 and Consideration of The collection of ACTIVITIES included to predict environmental 7.3 7.2, and related project-specific sufficient effects and address identified Appendix 7.2-B) does and cumulative information to public and Aboriginal groups’ not indicate that effects on VC address concerns. sufficient information subcomponent Aboriginal is included in the EIS species requested groups’ concerns to predict adverse by Musqueam. is an EISG impacts on Musqueam requirement. The rights and interests. test for the For example, justification of Musqueam concerns infringement on regarding cultural Musqueam important species, fishing rights, set including eulachon out in the and sturgeon (which Sparrow decision, are referenced in requires the Musqueam draft standard of traditional and current assessment to be use reports), have sufficient to been excluded from enable consideration in the meaningful Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information EIS. evaluation of adverse effects on Musqueam fishing rights.

7.2 Includes fish habitat compensation 17.3 An onsite fish habitat EIS should be Musqueam plan and/or measures to offset compensation plan is revised to include suggests that the serious harm to fish and associated required, as outlined the following: 1. requirement to works (if any) in Section 17.3.2.2. Evidence that consider and However, there is no consultation with incorporate ATK evidence presented of Musqueam on is not limited to Proponent the conceptual baseline data consultation with fish habitat collection and Musqueam on its compensation environmental “Onsite Habitat plan has effects Concepts” occurred; 2. assessment, but Details of how includes consultation with incorporating ATK Musqueam has into mitigation informed the development, conceptual fish monitoring and habitat environmental compensation management plan; 3. planning. This is Information on not evident in how ATK was Section 17.3. used in the Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information development of the conceptual fish habitat compensation plan, including proposed locations for fish habitat compensation components to be implemented; 4. Evidence that Musequeam knowledge of the effectiveness of previous fish habitat compensation plans and other fish habitat related offsets, has been considered in the development of onsite habitat concepts. Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information 7.2 Requirement of wetland 17.4 The Proponent has not It is Musqueam’s The Crown has a compensation plan and associated yet determined expectation that duty to consult works (if any) whether a wetland the EISG with Musqueam compensation plan requirement – on all potential (WCP) will be which implies adverse impacts required. Section 17.4 that a to rights, and any suggests that PMV will requirement of proposed forms complete a wetlands the EIS is to make of ecological functions a determination accommodation (WEF) assessment, but first of whether a to address those has not done so to wetland impacts. date. compensation plan is required, a necessary prerequisite to describing its requirements (if any) – has not been met. The results of a WEG should be integrated into the EIS prior to it being considered complete, not added as a later appendage. In the event that a Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information wetland ecological functions (WEF) assessment determines the need for a WCP, the Proponent should be required to consult with Musqueam regarding potential offsetting locations to ensure accommodation of impacts on Musqueam territory and rights. 8.0 In its alternative means analysis, The Proponent The Agency is Proper ALTERNATIVE the EIS will include, at a minimum, provides some form of requested to consideration of MEANS OF the following project components: alternative means require the alternative means CARRYING OUT - location of the marine terminal analysis for each of Proponent to requires the THE PROJECT within B.C; the listed items. engage incorporation of

- location, orientation, and layout Musqueam’s primary Musqueam in a multiple accounts of the approach channel, harbour issues are that the reconsideration, analyses, Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information basin, and berth(s) for both the EISG failed to require, using multiple including inputs marine terminal and tug basin; and the Proponent accounts from priority - location and configuration of the 5.3, 5.4 failed to consider, evaluation tools, Constitutional sediment transfer pit; 5.5.1, 5.5.2 factors beyond of all of the rights holding - alternatives to dredging; and 5.5.5 technical and alternative means First Nations, and methods for dredging; economic feasibility in of carrying out the incorporation - alternatives to disposal at sea of its assessment of the Project. In of additional sediments; and disposal at sea alternative means, addition, the criteria over and location(s) including Aboriginal Proponent should above economic social, cultural and be required to and technical rights considerations show how this feasibility. and ecological consultation was variables (in the considered in its “Location of the preferred marine terminal alternatives, and within BC” section), the role ATK and and that the Aboriginal local Proponent did not knowledge played engage Musqueam in in project any consultation on planning around any of the alternative alternative means. Nor was any means. ATK included in the determination of preferred alternative means. Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information 9.1.1 Existing The EIS will include a description of 8.1.3, 8.1.3; The Valued The Proponent is The Valued Environment the environment, including the Sections 9.1 Components, sub- requested to Components (Baseline) - components of the existing through 9.8 components and provide written chosen reflect a Methodology environment and environmental describe measureable documentation typical western processes, their interrelations and existing parameters generated indicating when scientifically interactions as well as the conditions for by the Proponent have and how it biased approach variability in these components, the biophysical not been subject to engaged to environmental processes and interactions over environment verification by Musqueam in the assessment that time scales appropriate to the Musqueam. The identification of is not aligned project… This analysis will include Proponent’s assertion Valued with Musqueam’s environmental conditions resulting that it chose VCs on Components, ATK, worldview, from historical and present the basis in part of sub-components or holistic activities in the local and regional feedback from and measureable relationship with study area Aboriginal groups (see parameters, and its traditional for example pgs 8-7; what sort of territory and the 8-10) is not supported capacity funding resources that in the text. it provided to sustain their allow Musqueam mode of life. to engage in this Presenting draft time consuming VCs to type of exercise Musqueam in in a meaningful one-off meetings way. In addition, does not the time scale represent a going back meaningful effort toward a less to engage the damaged baseline Musqueam Indian (a less Band in actually Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information industrialized developing the marine and VCs for this EA. terrestrial environment in Musqueam territory) – the “appropriate time scale” for assessment of cumulative change to date – is not established for all VCs in the EIS, nor is the backcast generally temporally deep enough to establish change over time in both the biophysical environment (substantially altered over the past century plus) or related Aboriginal rights infringements. Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information 9.1.1 In describing the physical and 10.3, Vol 2 ICs, Musqueam Aboriginal Proponent must Proponent uses biological environment, the Vol 3 VCs Traditional Knowledge include more the term proponent will take an ecosystem has not been information on “intermediate approach that considers both incorporated into Aboriginal components scientific and traditional characterization of traditional (ICs),” which will knowledge and perspectives Intermediary knowledge and change due to the regarding ecosystem health and Components (Vol 2 perspectives project. However, integrity. ICs), in particular, the regarding the proponent trajectory of change of ecosystem health does not include each IC. and integrity; this Aboriginal is currently Traditional lacking in the Knowledge to draft EIS. comprehend the ecosystem health and integrity. If assessing intermediate components (and Musqueam does not necessarily agree that the concept of “intermediate components” is a valid one, an issue that likely will require more discussion should Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information the EIS review period be entered1 , the Proponent must take an ecosystems approach, which includes both scientific and traditional knowledge. 9.1.1 The proponent will identify and VCs Musqueam notes that Either Many VCs and justify the indicators and measures virtually no justification of what the of ecosystem health and integrity measureable why observed Proponent calls used for analysis, and relate these parameters related to change by First Intermediate to the identified VCs and proposed ATK, observations by Nations for Components have monitoring and follow-up traditional land and factors associated changed over measures. marine users, or oral with ecosystem time to date as history have been health and the biophysical integrated into the integrity is not environment in indicators and included in the Musqueam measures of EIS, or (much territory has been

1 Musqueam has strong objections to the use of the concept of "intermediate components” in place of "valued components". This concept has no basis or precedent in federal environmental assessment, and to the best of our knowledge has not been used in other federal environmental assessments related to marine terminal facilities. The CEAA Glossary (updated 2014-03-10) notes, "Valued ecosystem components that have the potential to interact with project components should be included in the assessment of environmental effects” (emphasis added). (Notably, the CEAA Glossary does not include any reference to "intermediate components".) Any such component should not be merely considered as a mediating pathway to another component, but should be assessed as a valued component in and of itself. The assessment of all VECs (or VCs) must include a significance estimation. Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information ecosystem health and preferred) progressively integrity. reconsideration eroded through by the Proponent industrial, of inclusion of residential and these qualitative, other context rich ATK anthropogenic materials into a change agents. revised EIS, is Observations of required. change over time in air quality, noise levels, marine water quality, wildlife and marine fish and mammals distribution, abundance and population health status, among many other environmental attributes, are all available through well-established ATK data collection methods that have yet to be Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information used by the Proponent in this EA.

9.1.1 The proponent will consider the Vol 3 It is premature for Given the Fish and fish resilience of relevant species Musqueam to provide importance of habitat (both populations, communities and any sort of definitive marine resources terms used in the their habitats. The proponent will determination of the to Musqueam broadest possible summarize all pertinent historical completeness of Aboriginal rights fashion to information on the size and “Volume 3” as against and mode of life represent the geographic extent of relevant this requirement of and well-being, bulk of harvested species populations as well as the EISG. Volume 3 is declines in the resources in the density, based on best available 823 pages before any ecosystem health marine information. appendices or figures that have environment) in are included. The fact infringed on particular is that the Proponent these rights and critical to has not narrowed interests over the Musqueam for a down the scope of the past century and variety of completeness review a half or more, reasons. The to specific sub- and the completeness of sections in “Volume 3” extremely large the EIS cannot be is a major contributor and complex assessed without to the difficulties we nature of this further time and face. Mining this marine-based resources being information to Project, allocated to establish whether the Musqueam Musqueam) Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information Proponent has requests adequately additional time to characterized and more fulsomely incorporated all examine whether pertinent historical the EIS includes information will take adequate data on more time than CEAA the resilience and has provided in this vulnerability of Completeness review marine and inter- period. tidal species, comparing “Volume 3” and its appendices to Musqueam’s rich ATK and fisheries technical team’s access to technical information that has been collected over time. To facilitate this review, we request the Agency require the Proponent to clarify for each species of Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information interest where exactly in Volume 3 of the EIS the information related to the assessment of resilience and vulnerability – and changes over time in the abundance, distribution and population health of the species – is available for review and comment.

9.1.1 The proponent will also examine 32.2 The section for current CEAA is It is a changes in the distribution, conditions - setting requested to fundamental populations, behaviour, and out the baseline of require the tenet of EA that availability of wildlife, fish and flora CULRTP - does not set Proponent to effects in the important context of out a baseline for the provide a assessment be implications to current use of lands distribution, baseline for the conducted in a and resources by Aboriginal populations, distribution, manner that peoples (CULRTP). behaviour, and populations, allows for availability of wildlife, behaviour, and changes in a VC fish and flora, and availability of (or related Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information whether current wildlife, fish and indicator species) distribution and flora of caused by a population availability importance to project be taken provide sufficient Musqueam into resources for the CULRTP, including consideration meaningful exercise of those within the relative to a rights-based terrestrial reliable traditional use of lands environment. characterization and marine/intertidal of baseline resources. Without a conditions. proper baseline, the Furthermore, assessment of changes interactions of all to these Project characteristics of components, harvested species including linear cannot be terrestrial meaningfully assessed. components, with In addition, project the environment interactions and must be effects on the considered. terrestrial environment has been excluded from consideration in the assessment of effects on CULRTP Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information 9.1.4 Specific ecosystems described 10.2, 11.5, 12.5, Ecosystem The Proponent ATK is an equally should at a minimum include those 13.5, 14.5, 15.5 productivity modeling should be legitimate form of communities found in the was conducted required to knowledge about intertidal, subtidal, and delta without any evidence ground truth its the receiving foreslope zones of the Roberts of data gathering from initial findings on environment with Bank/Fraser River Estuary (e.g., ATK holders. ecosystem greater time biofilm, benthic, eelgrass, sea pen zonation in the depth with which colonies, sands and mudflats, and RAA with ATK to calculate marsh communities) holders prior to change over time the EIS being and a holistic considered perspective as to complete. interactions and inter-relations between ecosystemic components. 9.1.5 Fish and In describing the baseline salmon 13.2.1 Two citations, without Revise the EIS to Fish Habitat population and associated fish any specific context, include a fulsome habitat in the Roberts Bank area from the Cohen consideration of and Fraser River Estuary, particular Commission (at pgs. the findings of attention should be paid to the 13-7 and 13-8) do not the Cohen findings of the Cohen Commission meet the clear intent Commission Final of Inquiry into the Decline of of this element of the Report. Sockeye Salmon in the Fraser River, EISG. the Final Report – October 2012 Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information 9.1.5 a characterization, including the 12.5, 13.5, 14.5 1. As a general rule, 1. Musqueam Without results of baseline surveys, of fish Musqueam rejects the requests more appropriate time populations (e.g., marine notion that “current temporal depth re: the invertebrates (such as crabs and conditions” are backcasting to population, bivalves), fish, marine mammals adequate for the establish change distribution and and other marine animals) found in description of over time for other population or migrating through the local and “baseline” for important marine health regional study areas. This should biophysical VCs. 2. species, including considerations for include species abundance, Section 12.5 describes but not limited to these VCs, the distribution, and life stage (e.g., a mixture of DFO data Dungeness crab degree of change zooplankton and benthic stages for over time for the and all salmon over time to the marine invertebrates, juvenile and PFMA 29, modeling species which current returning adult stages for associated with this travel through “damaged salmonids, juvenile and adult data set, and a single our waters. baseline” cannot stages for forage fish), and also set of SCUBA surveys 2. Multi-season be assessed. This include seasonal and annual in January 2013 in the Dungeness crab can lead to variations Project footprint area, surveys in the masking of as the primary Project footprint potentially location-specific data and LAA must be significant pre- sources for Dungeness completed in existing crab. This is order to establish significant inadequate – as the an adequate adverse effects Proponent notes – baseline of on certain species “less is known [about current due to rapid Dungeness crab in] the conditions for industrial, area within the Dungeness crab. residential and proposed Project other footprint” (pg. 12-25). anthropogenic Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information More information is changes caused required from since the time of dedicated studies on contact. Dungeness Crab in the Project-affected area itself.

Required: maps, at a suitable scale, 9.5.6, 11.5, Section 11.5 and In order to Musqueam has indicating the surface area of Figures 11-2 and Figure 11-2 do not properly assess critical fish and potential or confirmed fish habitat 9.5-13 have the underlined fish habitat fish habitat for spawning, nursery, feeding, information on fish distribution, the knowledge to overwintering, migration routes. and fish habitat, only Proponent must share but has This information should be linked data on marine provide a link to been to water depths (bathymetry) to vegetation where in the draft inadequately identify the extent of the fish distribution. Section EIS the required funded and habitat 9.5.6 and Figure 9.5- information engaged to date 13 are focused on actually is, or to provide this existing water generate it if it is information. quantity and not available in movement, the draft EIS. In sedimentation, addition, all ATK bathymetry, related to the morphology and tides. underline EISG requirement at ATK is not evident in left must be either section (and clearly included in certainly not on fish the revised draft habitat characteristics EIS. Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information and locations for key aspects of fish life cycles) and appears to be relegated largely to section 32, not included in the establishment of baseline and trend- over-time conditions delineation. 9.1.7 Human Required: Description of health and 20.5, 27.6 Despite recognition 1. Conduct socio- CEAA 2012 Environment socio-economic conditions, that Musqueam economic effects requires that including the functioning and members are subject assessment in a health and socio- health of the socio-economic to health inequalities, disagregrated economic effects environment, encompassing a the EIS in Section 27.6 fashion, on Aboriginal broad range of matters that affect does not differentiate separating out peoples from communities in the study area in a between impacts on effects on Project-related way that recognizes the most sensitive Aboriginal and changes are interrelationships, system human receptors (area non-Aboriginal subject to functions and vulnerabilities First Nations who rely sub-populations fulsome on the lands and and considering assessment. It is waters for food effects on each also Musqueam’s sources and cultural affected First understanding continuity) and the Nations. that recent general public. 2. Conduct health federal EAs (e.g., effects PNW LNG) have assessment in a seen CEAA disagregrated require separate Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information fashion, assessments of separating out effects on each effects on affected First Aboriginal and Nation for all non-Aboriginal CEAA 2012 5(1)(c) sub-populations factors and we and considering expect the same effects on each for this mega- affected First project. Nation. 9.1.7 Required: Description of physical 32.2 28.0 Musqueam house Provide an The EIS does not and cultural heritage, including sites, seasonal sites, adequate describe structures, sites or things of and place names are description of Musqueam historical, archaeological, not included. The Musqueam physical and paleontological or architectural entire ethnographic physical and cultural heritage, significance analysis for all Nations cultural heritage including but not is pooled and consists in the RAA. In necessarily of less than one page addition, provide limited to specific in section 28. The more detail on sites, as required narrow treatment of how Musqueam by the EIS cultural heritage in the was engaged in Guidelines. Each EIS masks the fact that the identification First Nation’s this area has been and and investigation physical and remains an important of physical and cultural heritage one for Musqueam cultural heritage. merits specific cultural practices and The EIS should be attention rather cultural continuity. culturally rich than pooling or enough to “lumping” Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information identify the role together this area plays in Musqueam’s cultural landscape.

9.1.8 Aboriginal With respect to potential effects on Sections 7.2, Adequate baseline Please provide a EIS Guidelines Peoples Aboriginal peoples and the related 32.1.1, 32.2 information has not proper baseline requirement, VCs, baseline information will be Sections 19.6, been provided for for Musqueam directly related to provided for each Aboriginal group 20.5.2, 21.5, Musqueam in relation CULRTP that legislative identified. The EIS will also indicate 24.5.2, 27.6.1 to CULRTP. permits requirement for how input from Aboriginal groups SEIA reports: Information provided measurable 5(1)(c)(iii) was used in establishing the Appendices 18- is not sufficiently assessment of baseline conditions related to The A and 18-B detailed to permit adverse effects of EIS will provide… health and socio- proper effects the project. economics, physical and cultural assessment. heritage and current use of lands and resources for traditional purposes. Other information or factors of importance to Aboriginal groups should be reflected as necessary. 9.1.8 Aboriginal The EIS will provide… traditional 32.2 Adequate baseline See line item See line item Peoples uses currently practiced (e.g., information has not directly above directly above fishing for crab, bivalves and fin- been provided for fish, harvesting plants, birds, Musqueam in relation trapping wildlife and gathering to CULRTP. berries) that could be affected by Information provided Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information the project. is not sufficiently detailed to permit a proper effects assessment.

The EIS will provide… places where 32.2.4 Adequate baseline See line item See line item fish, wildlife and plants are information has not directly above directly above harvested. been provided for Musqueam in relation to terrestrial components of CULRTP. Information provided is not sufficiently detailed to permit a proper effects assessment. 9.2 POTENTIAL At a minimum, the EIS will 32.0 See line item directly See line item See line item OR summarize available information above directly above directly above ESTABLISHED on the potential or established ABORIGINAL Aboriginal and Treaty rights and AND TREATY related interests of the Aboriginal RIGHTS AND groups that have the potential to RELATED be adversely impacted by the INTERESTS project. Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information 10.1.1 In documenting the analyses There is a lack of detail Provide a detailed The EISg requires included in the EIS, the proponent 30.0, 33.0 on required description of the development will: contingency measures contractor of contingency that contractors will contingency plans plans to address - develop contingency plans that Vols 3 and 4 VCs be required to follow. to address accidents and explicitly address accidents and 33.5, Table 35-2 In addition, Table 33-1 accidents and malfunctions. In malfunctions lists 16 different malfunctions. In its current state, - identify any proposed follow-up Construction addition, provide the EIS is unclear and monitoring activities, Environmental a rationale for as to what the particularly in areas where Management Plan why Aboriginal contingency plans scientific uncertainty exists in the “sub-plans”, only two groups are required of prediction of effects of which the excluded from infrastructure Proponent suggests it consultation in all developers and will have to consult but two of the guaranteed by with “appropriate proposed the Proponent Aboriginal groups” on Construction will entail. It is – Archaeological Environmental not acceptable to Monitoring and Management relegate the Management Plan and Plan sub-plans, or development of Land and Marine reconsider. In specific Traffic Management addition, mitigations in Plan. Musqueam those expects that Management Section 33 of the Plans to a date final EIS will after the include more completion of the detail on EA process. The proposed fuel of the Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information Construction Crown’s decision- Environmental making and Management consultation with Plans Musqueam on same, in this and all EAs, should be those specific mitigations 10.1.3 Effects of The EIS will describe the effects of 29.4, The table in Appendix Please provide a The Proponent’s Changes to the any changes the project may cause Appendix 29-F 29-F repeats the revised recognition (p. Environment to the environment, with respect flawed conclusion that assessment of 32-131) that the to Aboriginal peoples, on health a proposal to, “Work adverse effects of project will and socio-economic conditions, towards a draft Terms project- directly physical and cultural heritage, the of Reference to guide displacement on displace/alienate current use of lands and resources future discussions Musqueam Musqueam from for traditional purposes, or any related to CULRTP, with fishing grounds in structure, site or thing that is of accommodation for proper a manner that historical, archaeological, effects from the consideration of a cannot be paleontological or architectural Project”, is a form of proposal for mitigated should significance. environmental accommodation- automatically mitigation which will related lead to a eliminate any and all discussions as a conclusion of residual effects form of post-EA residual effects.2 related to project- compensation, Therefore, a

2 Port Metro Vancouver, Roberts Bank Terminal 2 Project Environmental Impact Assessment, March 2015, Section 32.2, Potential or Established Aboriginal and Treaty Rights and Related Interests, Including Current Use of Lands and Resources for Traditional Purposes, p, 32-131, “The Project is expected to impact the ability of the Musqueam First Nation to exercise the asserted right to harvest marine resources (crabs) based on potential changes in access to a preferred crab harvesting location.” Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information related displacement not as a form of cumulative of Musqueam mitigation. effects harvesters from areas Please provide a assessment of preferred use. This cumulative effect should be flawed assumption assessment on undertaken. has, in turn, led to Musqueam failure of the EA to CULRTP. undertake a cumulative effects assessment on Musqueam CULRTP. Both errors in the EA lead to conclusion that greatly underestimates cumulative effects on Musqueam CULRTP. 10.2 Adverse The EIS will describe the potential 32.3 The EIS does not Please provide Sturgeon and Impacts on adverse impacts of the project on assess potential project-specific eulachon are Aboriginal and the ability of Aboriginal peoples to adverse project- and cumulative important Treaty Rights exercise the potential or specific or cumulative effects socially, and Related established Aboriginal and Treaty impacts on Musqueam assessment on culturally, and for Interests rights and related interests ability to harvest two Musqueam ability Aboriginal rights identified in section 9.2 of the EISG clearly identified to harvest these practices by species of concern: species of Musqueam sturgeon and concern Also, members. Fishing eulachon. Under the explain how the is a vital part of Sparrow decision of Crown justifies the culture and Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information the Supreme Court of the proposed economy of the Canada, any proposed infringement of Musqueam and infringement of Musqueam’s all infringements Musqueam’s established must be justified. Aboriginal right to fish Aboriginal right to must be justified by fish. the Crown (including Port Metro Vancouver). A description of the infringements does not suffice to discharge this constitutional duty. This section of the EIS will 32.3 The conclusion of no Please provide a It is assumed that summarize potential adverse adverse residual proper the purpose of impacts (on potential or effects on Musqueam assessment of this requirement established Aboriginal and Treaty rights and title is residual adverse (in the EIS rights and related interests) that unsupportable. The impacts to Guidelines) is to were identified through the proponent has made a Musqueam rights enable CEAA to environmental effects described in serious flaw in and title, built on determine the section 10 characterizing a a foundation of a seriousness of proposal to, “Work more effective adverse impacts towards a draft Terms consultation of the project on of Reference to guide process with Musqueam rights future discussions Musqueam. The and title, and related to infringement of therefore what accommodation for Musqueam’s accommodation Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information effects from the Aboriginal right to may be required. Project”, as a form of fish must be The Supreme impact justified. Court of Canada mitigation/avoidance. decision in Sparrow applies See above and must be respected. 10.2 This section of the EIS will See response to See response to See response to summarize VCs suggested for similar EIS similar EIS similar EIS inclusion in the EIS by Aboriginal 8.1.2, Appendix requirement set out requirement set requirement set groups, whether or not those 7.2-B under section 3.1.1 out under section out under section factors were included, and the 3.1.1 3.1.1 rationale for any exclusions

Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information The assessment of the potential 32.2, 32.3 The assessment of Please provide New adverse adverse impacts of each of the impacts to Aboriginal assessment impacts of linear project components and activities, rights has relied upon (project-specific components of in all phases, will be based on a CULRTP assessment and cumulative) the project - comparison of the exercise of the for its conclusions. of the effects of marine and identified rights between the The CULRTP project terrestrial - need predicted future conditions with assessment has components to be assessed in the project and the predicted excluded effects of (including keeping with the future conditions without the terrestrial project physical works Crown’s legal project. It is recommended that components on and activities) on duty to consult. the impact matrix methodology Musqueam unceded Musqueam’s described in section 10.1.1 be Aboriginal rights and unceded adapted for this purpose. title. Therefore, the Aboriginal rights assessment of impacts and title. from these project components is outstanding.

11.1.1 The EIS will indicate what other 5.0, 17.0, 33.0, Alternative mitigation Provide a clear EISg requires the technically and economically Vols 3 and 4 VCs measures are not description of proponent to feasible mitigation measures were properly assessed with other technically submit what considered, including the various rationales provided for and economical other mitigation components of mitigation, and why they were feasible measures were explain why they were rejected. rejected. mitigation submitted and Trade- offs between cost savings measures and why they were and effectiveness of the various why they were rejected, forms of mitigation will be justified. rejected. including trade- offs between cost Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information saving and effectiveness. 11.1.1 Where mitigation measures are Vol 2 ICs, Vols 3 Offsetting Framework Provide an EISg requires the proposed to be implemented for and 4 VCs, 30.0, is a non-standard explanation to proponent which there is little experience or 31.0, 33.0 approach. the potential risks articulate the for which there is some question as and effects to the potential risks for to their effectiveness, the potential environment due mitigation risks and effects to the to the use of a measures where environment should those non-standard there is some measures not be effective will be approach to question to their clearly and concisely described mitigate project effectiveness. related effects on marine biophysical VCs. 11.2 Measures This section will include 32.3 The proponent has Please amend The language in to Address environmental mitigation and made a serious flaw in sub-section this “mitigation” Impacts on avoidance measures identified in characterizing a (32.3.3) for is full of so many Aboriginal and section 11 that also serve to proposal to, “Work Musqueam so disclaimers that Treaty Rights address potential adverse impacts towards a draft Terms that reference to the end result is on potential or established of Reference to guide a proposal to, nothing Aboriginal and Treaty rights and future discussions “Work towards a resembling a related interests related to draft Terms of “mitigation” accommodation for Reference to commitment. It effects from the guide future should not be Project”, as a form of discussions characterized as environmental related to mitigation. The mitigation/avoidance. accommodation EISG requires that for effects from environmental Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information the Project”, is mitigation and removed as a avoidance form of measures be mitigation. There identified; this is has been a not one. The complete failure decision of the to provide a Supreme Court of justification of Canada in the proposed Sparrow must be infringement of respected. Musqueam’s established Aboriginal right to fish as required by the Sparrow decision of the Supreme Court of Canada. 11.4 FOLLOW Required: Proposed Follow-up 33.5, 1. This section and More details on a The fact of UP PROGRAM Program in sufficient detail to allow Appendix 33-A appendix (33-A) make Proponent- unmitigated independent judgment as to the no reference to the proposed follow- residual effects likelihood that it will deliver the proposed involvement up plan (“the on Musqueam type, quantity and quality of of Musqueam in RBT2 Follow-up harvesting in the information required to reliably follow-up plan Program context of already verify predicted effects (or absence development and document”) is highly impacted of them), and to confirm both the implementation and required. The receiving assumptions and the effectiveness thus lack sufficient current document environment of mitigation…. detail. provided in place requires proper Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information (SEE P. 27 CONCORDANCE TABLE of a Follow-up follow-up FOR MORE DETAILS) 2. No follow-up Program is a very measures. Best measures (e.g., preliminary, high- practices require The proponent will describe the monitoring) are level document, that Musqueam is reporting methods to be used, proposed for CULRTP “Proposed Draft directly involved including frequency, methods and or rights-based Follow-up in follow-up format, as well as the involvement harvesting. Program measures related of any local, regional or Aboriginal Elements” that to the protection groups in the design, 2. This section and falls short of a of Musqueam implementation and evaluation of appendix does not clearly detailed rights and title. the Follow-up Program. provide required follow-up plan or details, e.g., reporting program methods to be used, document. This including frequency, document must methods and format. include the role Section 33.5 indicates of Musqueam in that “the development development and of the RBT2 Follow-up implementation Program document” of follow-up has yet to occur. (p. measures. 33-21) There is nothing to The Crown must show how the Crown discharge its duty (including Port Metro to justify the Vancouver) intends to infringement of discharge its duty to Musqueam’s justify the proposed Aboriginal right to infringement of fish that will be Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information Musqueam’s constituted by Aboriginal right to the Project. fish.

12.1.3 Summary of residual effects on 29.4, Appendix See comments related See comments See comments Summary of Aboriginal peoples 29-F to EIS guidelines related to EIS related to EIS Residual requirement 10.1.3, guidelines guidelines Environmental Effects of Changes to requirement requirement Effects the Environment 10.1.3, Effects of 10.1.3, Effects of Changes to the Changes to the Environment Environment 12.2 The potential adverse impacts on 32.3.3 See comments related See comments See comments OUTSTANDING potential or established Aboriginal to EIS guidelines related to EIS related to EIS ABORIGINAL and Treaty rights and related requirement 10.2, guidelines guidelines ISSUES interests that have not been fully Adverse Impacts on requirement 10.2, requirement 10.2, mitigated as part of the Aboriginal and Treaty Adverse Impacts Adverse Impacts environmental assessment and Rights and Related on Aboriginal and on Aboriginal and associated engagement with Interests Treaty Rights and Treaty Rights and Aboriginal groups. Related Interests Related Interests. Discharge by the Infringement of Crown of its duty Musqueam’s to justify the established proposed Aboriginal right to infringement of fish. Musqueam’s Aboriginal right to Musqueam Indian Band Roberts Bank Terminal 2 Project Environmental Impact Statement – Comments on Completeness June 15, 2015

Section of EISG EISG Requirement Relevant Issue Requested Rationale Section of EIS Completeness Information fish.

14.0 Summary Potential residual and cumulative Table 35-3, Table 35-3 does Please provide a Residual effects Tables effects and significance of residual Appendices 7.2- include residual description of on Musqueam environmental effects, outstanding B, 7.3-A, 7.3-B effects on Musqueam residual effects current Aboriginal issues CULRTP, in particular, on Musqueam traditional marine to marine harvesting. CULRTP, in harvesting are an particular, to implicitly marine acknowledged harvesting. fact in this EIS. The Proponent must be required to be explicit about these effects so that proper follow-up measures and accommodation measures can be identified.