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NATIONAL ENERGY BOARD Hearing Order OH-001-2014 Trans NATIONAL ENERGY BOARD Hearing Order OH-001-2014 Trans Mountain Pipeline ULC (Trans Mountain) Application for the Trans Mountain Expansion Project File OF-Fac-Oil-T260-2013-03 02 FINAL WRITTEN SUBMISSIONS OF THE INTERVENOR, TSAWOUT FIRST NATION JANUARY 12, 2016 _________________________________________________________________________________ MANDELL PINDER LLP 422 - 1080 Mainland Street Vancouver, BC V6B 2T4 Phone: 604.681.4146 Fax: 604.681.0959 Brenda Gaertner Crystal Reeves Michael Bissonnette Counsel for the Intervenor, Tsawout First Nation TABLE OF CONTENTS A. INTRODUCTION ................................................................................................................ 1 B. THE REGULATORY FRAMEWORK ....................................................................................... 3 (1) NEBA.............................................................................................................................. 4 (2) CEAA .............................................................................................................................. 5 (3) The Hearing Order ...................................................................................................... 10 (4) TERMPOL ..................................................................................................................... 13 C. SECTION 35(1) ABORIGINAL RIGHTS ................................................................................ 14 (1) Tsawout’s Established Treaty Right to Fish as Formerly ............................................. 14 D. ABORIGINAL TITLE AND RIGHTS ...................................................................................... 22 E. FREE, PRIOR AND INFORMED CONSENT (FPIC) ................................................................ 29 F. TSAWOUT FIRST NATION ................................................................................................ 31 (1) W̱ SÁNEĆ Territory ....................................................................................................... 32 (2) W̱ SÁNEĆ Laws and Governance .................................................................................. 36 G. TSAWOUT’S TRADITIONAL USE AND OCCUPANCY OF W̱ SÁNEĆ TERRITORY ...................... 42 (1) The seasonal round ..................................................................................................... 42 (2) Marine Foods .............................................................................................................. 44 (3) Fishing ......................................................................................................................... 45 (4) Gathering of Marine Foods ......................................................................................... 49 (5) Hunting ........................................................................................................................ 53 (6) Spiritual and Cultural Sites .......................................................................................... 55 (7) Other Culturally Important Species ............................................................................ 57 (8) Archaeological Sites .................................................................................................... 58 H. IDENTIFIED PROJECT IMPACTS AND EFFECTS ON TSAWOUT TREATY AND ABORIGINAL RIGHTS ........................................................................................................................... 59 (1) Impacts and Effects from Marine Shipping Operations .............................................. 61 (a) Effects of Vessel Wake ................................................................................... 61 (b) Other Impacts of increased vessel traffic ....................................................... 64 (c) Loss of Access and Use to the Territory ......................................................... 66 (2) Effects of Accidents and Malfunctions ....................................................................... 67 (3) Cumulative Effects ...................................................................................................... 69 (4) Diluted Bitumen in the Marine Environment ............................................................. 71 I. GAPS IN THE ASSESSMENT OF IMPACTS AND EFFECTS ..................................................... 73 (1) Gaps in Trans Mountain’s Assessment of Project Impacts on Tsawout’s Traditional Marine Use ............................................................................................... 73 (a) The Local Study Area ...................................................................................... 73 (b) Sacred Sites ..................................................................................................... 74 - 3 - (c) Indicator Species ............................................................................................ 74 (d) Access to Harvesting Sites .............................................................................. 75 (e) Findings of Significance .................................................................................. 76 (f) Sensory Disturbance to Marine users ............................................................ 76 (2) Gaps in the Assessment of Vessel Wake on Burial Grounds ...................................... 79 (3) Gaps in the Assessment of an Oil Spill Risk ................................................................. 80 (4) Gaps in the Assessment of Oil Spill Response ............................................................ 89 (a) Potential Spill Clean Up and Damage Costs ................................................... 99 J. CONCERNS RELATING TO TERMPOL .............................................................................. 105 (1) Inadequate Consultation .......................................................................................... 107 (2) Gaps in Information in the TERMPOL Report ........................................................... 109 K. NECESSITY OF THE PROJECT: PUBLIC INTEREST AND ECONOMIC FEASIBILITY OF THE PROJECT ....................................................................................................................... 110 (1) Economic Feasibility of the Project ........................................................................... 112 (2) Respecting Tsawout Title and Rights is in the Public Interest .................................. 129 (a) The Case Law ................................................................................................ 130 (3) Recognition and respect for Tsawout s. 35 Treaty and Aboriginal Rights is in the Public Interest ........................................................................................................... 132 L. CONCLUSION ............................................................................................................... 135 A. Introduction 1. Tsawout First Nation (“Tsawout”) is one of five bands comprising the W̱ SÁNEĆ Nation who share the same Territory, language, culture and traditions. They are Salt Water People. The W̱ SÁNEĆ have lived on the waters and lands within their Territory since time immemorial. 2. Tsawout’s home place includes Saanichton Bay, the marine waters surrounding the Bay, the lands and waters of what is now known as the Southern Gulf islands and San Juan Islands, as well as the marine waters and village and fishing sites at what is now known as Point Roberts. Tsawout has never ceded or surrendered their Territory nor their Aboriginal title, rights and interests within W̱ SÁNEĆ Territory. 3. Tsawout have consistently affirmed their title and rights to and within W̱ SÁNEĆ Territory, including through various representations to Crown governments since contact. One of these representations was in 1852, when Tsawout became a signatory to the North Saanich Treaty, also known as one of the Douglas Treaties. 4. Tsawout continues to use and occupy W̱ SÁNEĆ Territory, rely upon the marine waters to sustain them and their cultural relations, and manage it according to Tsawout/W̱ SÁNEĆ laws and principles for the benefit of past, present and future generations of Tsawout people. 5. Tsawout as part of the W̱ SÁNEĆ are Aboriginal peoples as defined by section 35 of the Constitution Act, 19821 and as such, their rights, including their treaty rights and their Aboriginal title rights, are recognized and affirmed. 6. Trans Mountain is proposing to expand pipeline facilities under the Trans Mountain Expansion Project (Project), which would involve building and operating approximately 987 kilometres of new oil pipeline, as well as reactivating 193 kilometres of existing oil pipeline between Alberta and British Columbia. The Project also includes the construction of new pump stations along the pipeline route, as well as the construction of new oil storage tanks and tanker berths at the Westridge Marine Terminal (“Project”). The marine component of the proposed expansion would increase the number of tankers and barges being loaded at 1 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. - 2 - the Westridge Marine terminal, which would then travel through W̱ SÁNEĆ Territory (“Marine Shipping Component” or “Marine Shipping”). 7. The proposed Marine Shipping Component would increase the number of vessels calling in at the Westridge Marine Terminal from approximately 60 tankers to per year to 408 tankers per year,2 which would significantly increase tanker traffic in Haro
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