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

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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

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(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 .

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 . 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.

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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 Strait and in the Strait of Georgia. W̱ SÁNEĆ Territory is bisected by the proposed tanker route, by Trans Mountain’s Marine Local Study Area (LSA), and the entire Regional Study Area (RSA).

8. Tsawout has tried in good faith to participate as intervenors in the National Energy Board (NEB) hearings to inform the Board, Trans Mountain and the Crown about Tsawout’s concerns with respect to the Marine Shipping Component of the Project, and the impacts of Marine Shipping on the exercise of Tsawout’s established treaty rights to fish as formerly and hunt, and upon Tsawout’s Title and Rights, at least to the extent possible in a regulatory quasi-judicial adversarial hearing, and in the absence of adequate funding or Government to Government engagement.

9. Tsawout submits that the Board cannot recommend the issuance of a section 52 Certificate for the Project, including the Marine Shipping Component, on the following basis:

(a) The Marine Shipping Component of the Project will infringe upon Tsawout’s established treaty right to fish as formerly and hunt within W̱ SÁNEĆ Territory, including the ability to manage and rely upon the marine waters of the Territory by this and future generations, and those infringements have not been justified;

(b) The Marine Shipping Component of the Project will impact upon Tsawout’s Title and Rights, including the ability to manage Tsawout Territory for present and future generations, to decide how the land and marine spaces are used, and to economically benefit from W̱ SÁNEĆ Territory, and no adequate accommodations have been offered that minimize, avoid or mitigate the inevitable impacts;

(c) Trans Mountain has not adequately assessed or addressed the risk of oil spills and emergency response to accidents and malfunctions related to Marine Shipping;

2 Exhibit C355-4-3 TMEP TERMPOL Report December 11, 2014 (A4F8Z4), p. 1

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(d) Trans Mountain has not provided sufficient evidence for the Board to conclude that the Project is needed and in the public interest, particularly given that the Project will infringe upon established treaty rights that are protected by s. 35 of the Constitution and the Crown has made no effort to justify such infringements. Trans Mountain’s assertions that the Project will bring economic benefits to Canada is unreliable and based on a theory of world oil markets that is not realistic. The Project is not needed to supply oil to Canadians to keep their homes or their businesses running. The Project is promoted to provide diversified markets to an oil and gas industry that is in the midst of a global decline.

10. In these submissions, Tsawout will provide the Board with their reasons and rationale as to why the Board should not recommend the issuance of a Certificate of Public Convenience and Necessity for the Project.

B. The Regulatory Framework

11. Trans Mountain has applied for a Certificate of Public Convenience and Necessity (“Certificate”) pursuant to section 52 of the National Energy Board Act ("NEBA"), which would authorize the construction and operation of the Project, as well as an order under section 59 of the NEBA, and other such relief that Trans Mountain may request or the Board considers appropriate.

12. The National Energy Board (“Board”) is required to provide a report to the Governor in Council recommending whether a Certificate and related approvals should be issued for the Project, as well as set out the conditions that the Project would be subject to if it were to be approved. As the Project involves constructing and operating more than 40 kilometres of new pipeline, it is also "designated project" under the Canadian Environmental Assessment Act, 2012 (“CEAA”). As a result, the Board is also required to conduct an environmental assessment of the Project that determines whether the Project will cause any significant adverse environmental effects and whether these effects are justified in the circumstances.3

3 National Energy Board Act, RSC 1985, c N-7 (“NEBA”), s. 52(1) and the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52 (“CEAA”), ss. 22, 29, 31(1).

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(1) NEBA

13. Subsection 52(1) of NEBA provides that if the Board is of the opinion that an application for a certificate in respect of a pipeline is complete, it shall prepare a report setting out:

(a) its recommendation as to whether or not the certificate should be issued for all or any portion of the pipeline, taking into account whether the pipeline is and will be required by the present and future public convenience and necessity, and the reasons for that recommendation; and

(b) regardless of the recommendation that the Board makes, all the terms and conditions that it considers necessary or desirable in the public interest to which the certificate will be subject if the Governor in Council were to direct the Board to issue the certificate, including terms or conditions relating to when the certificate or portions or provisions of it are to come into force.

14. In making its recommendation, the NEB is required to have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant. Subsection 52(2) of NEBA (non-exhaustively) lists factors that the NEB may consider, including:

(a) the availability of oil, gas or any other commodity to the pipeline;

(b) the existence of markets, actual or potential;

(c) the economic feasibility of the pipeline;

(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and

(e) any public interest that in the Board's opinion may be affected by the issuance of the certificate or the dismissal of the application.

15. As set out in these submissions, the unjustified impacts, effects and risks associated with the Marine Shipping Component, the significant potential impacts to the marine environment, the unproven economic feasibility of the Project, including the potential for significant potential net costs of the Project to Canadians and the creation of surplus

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pipeline capacity, prevents the Board from recommending the Project. Trans Mountain has not established that the Project, including the Marine Shipping Component, is in the public interest, particularly given that the Project infringes upon Tsawout’s established treaty rights that are protected under section 35 of the Constitution. As such, the Project should not be recommended to the Governor in Council. The Governor in Council will not be able to approve the Project, including the Marine Shipping Component, unless and until it could justify the infringement to Tsawout’s treaty rights. To date, no efforts have been made by the Crown to justify these infringements.

(2) CEAA

16. In its Report, the Board must also set out the Board’s environmental assessment of the Project, as carried out pursuant to CEAA.4 The Board’s environmental assessment of the Project must be consistent with the purposes and mandate of CEAA. Section 4(1) of CEAA sets out the following purposes:

(a) to protect the components of the environment that are within the legislative authority of Parliament from significant adverse environmental effects caused by a designated project;

(b) to ensure that designated projects that require the exercise of a power or performance of a duty or function by a federal authority under any Act of Parliament other than this Act to be carried out, are considered in a careful and precautionary manner to avoid significant adverse environmental effects;

(d) to promote communication and cooperation with Aboriginal peoples with respect to environmental assessments;

(e) to ensure that opportunities are provided for meaningful public participation during an environmental assessment;

(h) to encourage federal authorities to take actions that promote sustainable development in order to achieve or maintain a healthy environment and a healthy economy; and

(i) to encourage the study of the cumulative effects of physical activities in a region and the consideration of those study results in environmental assessments.

4 S. 52 (3), NEBA.

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17. Section 5 of CEAA lists the environmental effects that must be taken into account with respect to the Project, including the following factors:

(a) a change that may be caused to the following components of the environment that are within the legislative authority of Parliament:

(i) fish and fish habitat as defined in subsection 2(1) of the Fisheries Act,

(ii) aquatic species as defined in subsection 2(1) of the Species at Risk Act,

(iii) migratory birds as defined in subsection 2(1) of the Migratory Birds Convention Act, 1994, and

(iv) any other component of the environment that is set out in Schedule 2;

(b) a change that may be caused to the environment that would occur

(i) on federal lands,

(ii) in a province other than the one in which the act or thing is done or where the physical activity, the designated project or the project is being carried out, or

(c) with respect to Aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage,

(iii) the current use of lands and resources for traditional purposes, or

(iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

18. Under subsection 5(2) of CEAA, the following environmental effects must also be taken into account with respect to the Project:

(a) a change, other than those referred to in paragraphs 5(1)(a) and (b), that may be caused to the environment and that is directly linked or necessarily incidental to a

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federal authority’s exercise of a power or performance of a duty or function that would permit the carrying out, in whole or in part, of the Project

(b) an effect, other than those referred to in paragraph (1)(c), of any change referred to in paragraph (a) on

(i) health and socio-economic conditions,

(ii) physical and cultural heritage, or

(iii) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

19. The Government of Canada, the Minister, the Canadian Environmental Assessment Agency, federal authorities and responsible authorities, in administering the Act, are mandated under CEAA to exercise their powers in a manner that protects the environment and human health and applies the precautionary principle.5

20. In the Report, the Board must include a recommendation to the Governor in Council of whether the Project is likely to cause significant adverse environmental effects, taking into account the implementation of any mitigation measures identified in the Report; and if so, whether the significant adverse environmental effects can be justified in the circumstances.6

21. Section 19 of CEAA lists the factors that the environmental assessment must take into account. These include:

(a) the environmental effects of Project, including the environmental effects of malfunctions or accidents that may occur in connection with the Project and any cumulative environmental effects that are likely to result from Project in combination with other physical activities that have been or will be carried out;

(b) the significance of the effects referred to in paragraph (a);

(c) comments from the public, and any interrested party, received in accordance with CEAA;

(d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the Project;

5 S. 4(2) CEAA. 6 Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52, ss. 29 and 31(1) (“CEAA”).

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(e) the requirements of the follow-up program in respect of the Project;

(f) the purpose of the Project;

(g) alternative means of carrying out the Project that are technically and economically feasible and the environmental effects of any such alternative means;

(h) any change to the Project that may be caused by the environment.

22. The environmental assessment for the Project is also to consider Aboriginal traditional knowledge.7

23. In addition to the factors listed in s. 19 of CEAA, the NEB also issued the “Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012” for the Project.8 In the Factors and Scope of Factors, the Board set out that the potential environmental and socio-economic effects of increased marine shipping activities to and from the Westridge Marine Terminal that would result from the Project, including the potential effects of accidents or malfunctions that may occur, would be considered under NEBA. The Board also stated that, to the extent that there is potential for environmental effects of the designated project to interact with the effects of the marine shipping, the Board will consider those effects under the cumulative effects portion of the CEAA environmental assessment.9

24. On December 10, 2013, the Board also instructed Trans Mountain as to the filing requirements related to the potential environmental and socio-economic effects of increased marine shipping activities.10 Trans Mountain was directed to file the following:

(a) Consultation activities related to the increase in marine shipping;

(b) Detailed descriptions of:

7 See s. 19(3) of CEAA and Exhibit A13-1, Letter-Application for Trans Mountain Expansion Project-Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 (A3V6J1). 8 Exhibit A13-1, Letter-Application for Trans Mountain Expansion Project-Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 (A3V6J1). 9 Exhibit A13-1, Letter-Application for Trans Mountain Expansion Project-Factors and Scope of the Factors for the Environmental Assessment pursuant to the Canadian Environmental Assessment Act, 2012 (A3V6J1), pdf p. 2. 10 Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities Trans Mountain Expansion Project Document, September 10, 2013 (A3K9I2).

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(i) the type, class and specifications of vessels transiting to and from the terminal;

(ii) frequency, routing, speed and transit time of vessels;

(iii) associated activities such as docking, loading, bunkering, pilotage and tugboat escort; and

(iv) alternatives considered, such as routing, frequency and vessel types.

(c) Inbound and outbound journeys from the terminal to the 12 nautical mile territorial sea limit;

(d) The assessment of accidents and malfunctions related to the increase in marine shipping activities was also to include an assessment of potential accidents and malfunctions at the Terminal and at representative locations along the marine shipping routes. Selection of locations should be risk informed considering both probability and consequence. The assessment was also to include a description of:

(i) measures to reduce the potential for accidents and malfunctions to occur, including an overview of relevant regulatory regimes;

(ii) credible worst case spill scenarios and smaller spill scenarios;

(iii) the fate and behaviour of any hydrocarbons that may be spilled;

(iv) potential environmental and socio-economic effects of credible worst case spill scenarios and of smaller spill scenarios, taking into account the season- specific behaviour, trajectory, and fate of hydrocarbons spilled, as well as the range of weather and marine conditions that could prevail during the spill event;

(v) ecological and human health risk assessments for credible worst case spill scenarios and smaller spill scenarios, including justification of the methodologies used; and

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(vi) preparedness and response planning and measures, including an overview of the relevant regulatory regimes.11

25. The assessment of accidents and malfunctions must also provide a description of the liability and compensation regime that would apply in the case of a spill.12

26. The effects assessment conducted by Trans Mountain was also to provide information on navigation and safety, including:

(a) an overview of the relevant regulatory regimes and the role of the different organizations involved;

(b) any additional mitigation measures in compliance with, or exceeding regulatory requirements, proposed by Trans Mountain to further facilitate marine shipping safety; and

(c) how the regulatory regimes and any additional measures promote the safety of the increase in marine shipping activities.

27. For all mitigation measures related to the increase in marine shipping activities, and any applicable monitoring and follow-up measures, Trans Mountain was required to describe the roles, responsibilities and capabilities of each relevant organization in implementing the measures and the level of care and control that Trans Mountain would have in overseeing or implementing the measures.13

(3) The Hearing Order

28. On April 2, 2014, the Board released the Hearing Order for the Project, which included a list of issues that the Board will consider in the hearing for the Project. The list of issues are as follows:

(a) The need for the proposed project.

11 Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities Trans Mountain Expansion Project Document, September 10, 2013 (A3K9I2), pdf p. 1. 12 Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities Trans Mountain Expansion Project Document, September 10, 2013 (A3K9I2), pdf p. 2. 13 Filing Requirements Related to the Potential Environmental and Socio-Economic Effects of Increased Marine Shipping Activities Trans Mountain Expansion Project Document, September 10, 2013 (A3K9I2), pdf p. 3.

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(b) The economic feasibility of the proposed project.

(c) The potential commercial impacts of the proposed project.

(d) The potential environmental and socio-economic effects of the proposed project, including any cumulative environmental effects that are likely to result from the project, including those required to be considered by the NEB’s Filing Manual.

(e) The potential environmental and socio-economic effects of marine shipping activities that would result from the proposed project, including the potential effects of accidents or malfunctions that may occur.

(f) The appropriateness of the general route and land requirements for the proposed project.

(g) The suitability of the design of the proposed project.

(h) The terms and conditions to be included in any approval the Board may issue.

(i) Potential impacts of the project on Aboriginal interests.

(j) Potential impacts of the project on landowners and land use.

(k) Contingency planning for spills, accidents or malfunctions, during construction and operation of the project.

(l) Safety and security during construction of the proposed project and operation of the project, including emergency response planning and third-party damage prevention.

29. Tsawout was not consulted by the Crown before its decision to rely upon a quasi-judicial adversarial regulatory body to inform Crown consultation on this Project. Tsawout was not consulted by the Board before it released its list of issues. In order to be helpful to the Crown’s consultation process with Tsawout, the Board ought to have provided an opportunity for Tsawout to advise on the topics required for consultation, and collected all information reasonably required by Tsawout to assess the potential benefits, effects, impacts and risks of the Project.

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30. Critical direct and indirect effects and impacts of the Project are not being considered by the Board in its assessment of whether the Project is in the public interest. As an example, the Board’s list of issues, and consequently all of the hearing process, does not adequately include issues such as climate change, greenhouse gas emissions or cumulative impacts and effects. It has never been clear to Tsawout how the NEB can adequately consider the environmental impacts and public interest issues related to this Project without considering climate change, greenhouse gas emissions and cumulative impacts resulting from a pipeline expansion that is proposed to transport up to 890,000 barrels per day of diluted bitumen from the Alberta Oil Sands.

31. The Board has recognized that it owes duties of procedural fairness to the parties in this hearing and acknowledged that these duties vary with the interests of the parties at stake.14 It is submitted that in this case the Board’s procedural fairness duties are high. The Board is contemplating a project that has the potential for significant impacts to Tsawout’s established treaty rights, Aboriginal title and rights, reserve interests, lands and waters, and economy. While much of the economic benefits of the proposed project may go to Trans Mountain, any negative effects will be suffered by the people like Tsawout who live in the areas where the Project’s day to day operations, including the marine shipping component, will be experienced.

32. In determining whether this duty has been discharged the Board has quoted with approval the following: “At the heart of the analysis is whether, considering all the circumstances, those whose interests were affected had a meaningful opportunity to present their case fully and fairly.”

33. Many steps of the Board’s process denied Tsawout a meaningful opportunity to obtain the necessary information to adequately assess the Project and its potential impacts and effects on Tsawout title and rights. For example, the Board failed to:

 engage with Tsawout on the scoping of the hearing;

 provide funding so Tsawout could meaningfully participate in the process;

14 Exhibit A032, National Energy Board - Ruling No. 14 - Notices of motion from Ms. Robyn Allan and Ms. Elizabeth May to include cross-examination of witnesses - Trans Mountain Project (A60134), p. 3.

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 provide a process for the testing of Trans Mountain’s evidence through cross- examination;15

 ensure that Information Requests were adequately responded to by Trans Mountain;16

 strike Trans Mountain’s improper Reply Evidence;17

 provide Tsawout with an opportunity to respond to portions of Trans Mountain’s Reply Evidence with sur-reply evidence;18 and

 to admit relevant new evidence on the behaviour of diluted bitumen, which is directly relevant to the assessment of oil spill risks of the Project.19

(4) TERMPOL

34. The Project was subject to a Technical Review Process of Marine Terminal Systems and Transhipment Sites (TERMPOL), which is a voluntary assessment requested by Trans Mountain. The purpose of the TERMPOL Review is to:

(a) appraise operational vessel safety, route safety and cargo transfer operations associated with a proposed marine terminal system or trans-shipment site; and

(b) focus on improving, where possible, those elements of a proposed project which could, in certain circumstances, pose a risk to the integrity of a vessel’s hull while navigating.20

35. As part of the TERMPOL Review process, Trans Mountain submitted application materials to the TERMPOL Review Committee (TRC) on December 16, 2013 for their review based on the procedures set out in the TERMPOL Review Process 2001 Guidelines. The TRC is led by Transport Canada, with other members of the TRC coming from federal departments and authorities related to safe marine transportation. Despite repeated requests, there is no First Nation representation on the TRC, including representation by Tsawout.

15 Exhibit A15-3, Hearing Order; See also Exhibit A32-1 National Energy Board Ruling No. 14. 16 See for example Exhibit A18-1, National Energy Board Ruling No. 33 and Exhibit A18-3, Appendix 1, pdf pp. 131- 135; Exhibit A155-1, National Energy Board Ruling No. 63 and Exhibit A155-3, Appendix 1, pdf p. 62. 17 Exhibit A221-1, National Energy Board Ruling No. 96, pdf pp. 2, 4, 5. 18 Exhibit A221-1, National Energy Board Ruling No. 96, pdf pp. 2, 4, 5. 19 Exhibit A241-1, National Energy Board Ruling No. 105. 20 Exhibit C353-4-3 - Trans Mountain TERMPOL Report, December 11, 2014 (A4F8Z4), pdf p. 12.

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36. The materials submitted to the TRC included information on vessels, route, terminal operations, the increased risk of an oil spill based on risk assessments carried out by Det Norske Veritas, and potential mitigation measures to reduce those risks.21

37. On December 11, 2014, the TRC delivered the TERMPOL Report outlining their findings and recommendations, based on the TRC’s review of the materials provided by Trans Mountain.22 The findings and recommendations of the TRC relating to TERMPOL, and Tsawout’s concerns with those findings and recommendations, will be discussed in Section J below.

C. Section 35(1) Aboriginal Rights

(1) Tsawout’s Established Treaty Right to Fish as Formerly

38. In February 1852, James Douglas, Chief Factor for the Hudson Bay Company brokered two agreements with the W̱ SÁNEĆ, which are conventionally referred to as the “Douglas Treaties”.23 The treaty states, in part:

Our understanding of this sale is this that our village sites and enclosed fields are to be kept for our own use, for the use of our children, and for those who may follow after us, and the land shall be properly surveyed hereafter; it is understood however that the land itself with these small exceptions, becomes the entire property of the white people forever, it is also understood that we are at liberty to hunt over the unoccupied lands, and to carry on our fisheries as formerly.24 [emphasis added]

39. W̱ SÁNEĆ oral history places the signing of the Douglas Treaty at a point of escalating tension after the W̱ SÁNEĆ sent an armed party to stop a cedar logging operation in Cadboro Bay and the subsequent shooting of a young boy by a white farmer. It appears that the W̱ SÁNEĆ may have been expecting and even preparing for war when they met with Douglas in 1852.25

40. Eric Pelkey explains that the W̱ SÁNEĆ entrusted a missionary who was working among them at the time and who spoke SENĆOŦEN to interpret for them in their meeting with Governor Douglas:

21 Exhibit C353-4-3 - Trans Mountain TERMPOL Report, December 11, 2014 (A4F8Z4), pdf p. 12. 22 Exhibit C353-4-3 - Trans Mountain TERMPOL Report, December 11, 2014 (A4F8Z4), pdf p. 12. 23 Exhibit C355-15-19 - Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 46. 24 Exhibit C355-15-4 - Tsawout First Nation Exhibit B to Affidavit of Harvey Underwood (A4Q1D6). 25 Exhibit C355-15-19 - Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 46.

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They asked the priest to tell him, that they wanted him to honour their way of life and protect their way of life, and really just leave their people alone. Let them live in their villages, and leave their villages to themselves, and leave them to their way of life, and then that they would make peace with them, and they would trade with them. So that’s what they thought was agreed to that day. And when Sir James Douglas was making hand signals, they didn't really understand what he was talking about, and he was waving across there, and they took it to mean that he was recognizing their territory. But he was talking about actually a sale of land. So that’s what they took him to mean, that he was recognizing their territory by waving his hand across their territory while he was there. So that's what they believed was agreed to that day up on the mountain, and they gave their names to the person that was documenting what happened there.26

41. The meaning and effect of the Douglas Treaties, including Tsawout’s treaty rights to hunt and to “fish as formerly” have been considered by the courts in a number of cases, including R v. Bartleman (Bartleman)27 and Claxton v. Saanichton Bay Marina (Claxton).28

42. In Bartleman, the British Columbia Court of Appeal found that the hunted and fished throughout a large geographic area:

In 1852, the economy of the Saanich people was based on hunting and fishing at traditional locations throughout a large geographic area, so as to have access to resources when and where they were in the best supply. It was traditional among the Saanich people to co-operate across tribal and language divisions, sharing access to resources in one another’s local territories. Rights to hunt and fish at various locations flowed from family relationships, previous residency, and reciprocal inter- tribal or inter-family arrangements.

In 1852, the Saanich people hunted over the , southern as far north as Comox, the San Juan and Gulf Islands, and portions of the Lower Mainland. They went where the food was and where it could be caught. If the animals or fish moved on, so did the hunting.29

43. The court went on to conclude that the agreement made between the Saanich people and James Douglas was a treaty. With respect to the treaty right to hunt, the Court found that, based on the oral tradition of the Saanich people, the treaty bestowed a right to hunt on unoccupied land in all their traditional hunting locations, and the Saanich people have continued to hunt outside unceded land because of that belief.30 Furthermore, the Court

26 Exhibit C355-15-19 - Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 46-47. 27 55 BCLR 78 (“Bartleman”). 28 36 BCLR (2d) 79; [1989] 3 CNLR 46 (CA) (“Claxton”). Crown’s Leave to Appeal to the SCC denied. 29 Bartleman, paras. 33-34. 30 Bartleman, paras. 36, 50, 52.

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stated that the right “to carry on our fisheries as formerly”, which is coupled with the hunting rights in the treaties and in the correspondence relating to the making of the agreements, must refer to fisheries outside the ceded land because, in many of the agreements, there were no lakes, rivers or streams within the ceded land.31

44. In Claxton, the BC Court of Appeal found that the Tsawout Band is a successor to the Saanich Tribe and members of the band are descendants of the signatories of the Douglas Treaty entered into on 11th February 1852 with Governor James Douglas.32 The Court went on to find:

As did their predecessors, the Tsawout Band relies on the ocean water resources, particularly on the waters and resources of Saanichton Bay…[9] Salmon have been historically relied upon by the Tsawout both from the larger traditional territory and from the confines of Saanichton Bay and continue to be important.33

45. In Claxton, the Court of Appeal determined that the word “fishery” within the context of the treaty included not only the right to catch fish, but encompasses other rights which are incidental to the right granted by the treaty.34 The Court concluded that the right includes the right to travel to and from the fishery.35 The Court also determined that construction of the marina would impede access, which would disrupt the ability to carry on the stationary crab fishery as formerly; would result in the loss of eel grass habitat, which would destroy part of the fishery, and result in other disruptions to the fishery.36 The right to the fisheries as formerly clearly includes the legal ability to prevent harm to the fisheries relied upon by present and future generations.

46. Based on the Court of Appeal’s decision in Claxton, Tsawout’s established treaty right to fish as formerly must be viewed expansively. The NEB and the Crown must consider various types of Tsawout fisheries that may be impacted by this Project, including salmon fishing, cod and rockfish fishing, the crab fishery, as well as other traditional fisheries. Furthermore, impacts to Tsawout’s ability to exercise their preferred means in preferred locations, impacts to Tsawout’s ability to travel to and from their preferred and long

31 Bartleman, para 53. 32 Claxton, para 2. 33 Claxton, paras. 8-9. 34 Claxton, para 35. 35 Claxton, para 37. 36 Claxton, para 40.

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standing fishing locations, and impacts to fisheries habitat, such as impact to eelgrass beds, must all be considered when considering impacts of the Project on Tsawout’s rights and interests, as discussed more fully below in Section H, as was done by the Court in Claxton.

47. Section 35(1) of the Constitution Act, 1982 states that the existing Aboriginal and treaty rights of Aboriginal peoples of Canada are recognized and affirmed. The application of the regulatory framework guiding the issuance of certificates and approvals under NEBA and CEAA must be consistent with s. 35 obligations, including meeting the honour of the Crown, the necessity for the Crown to justify potential infringements to established rights, and meeting the duty to consult and accommodate Aboriginal title and rights.

48. Given Tsawout’s established treaty right to fish as formerly, which is recognized and affirmed as an existing right under s. 35, the Crown is required to justify any potential infringement of that right.

49. As established by the Supreme Court of Canada (SCC) in R. v. Sparrow37 and subsequently expanded upon in other decisions by the courts, once an existing Aboriginal or Treaty right has been recognized and affirmed, the Crown is required to justify any potential infringement of that right.

50. In Sparrow, the Court addressed the requirement of justification as a result of the constitutional recognition and affirmation of Aboriginal rights, stating:

Section 35(1) suggests that while regulation affecting aboriginal rights is not precluded, such regulation must be enacted according to a valid objective. Our history has shown, unfortunately all too well, that Canada's aboriginal peoples are justified in worrying about government objectives that may be superficially neutral but which constitute de facto threats to the existence of aboriginal rights and interests. By giving aboriginal rights constitutional status and priority, Parliament and the provinces have sanctioned challenges to social and economic policy objectives embodied in legislation to the extent that aboriginal rights are affected. Implicit in this constitutional scheme is the obligation of the legislature to satisfy the test of justification.38

51. The SCC then set out that the Crown has the burden of satisfying a two-part justification test:

37 [1990] 1 SCR 1075 (“Sparrow”). 38 Sparrow at p. 1110 (emphasis added).

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The justification analysis would proceed as follows. First, is there a valid legislative objective? … If a valid legislative objective is found, the analysis proceeds to the second part of the justification issue. Here, we refer back to the guiding interpretive principle derived from Taylor and Williams and Guerin, supra. That is, the honour of the Crown is at stake in dealings with aboriginal peoples. The special trust relationship and the responsibility of the government vis‑à‑vis aboriginals must be the first consideration in determining whether the legislation or action in question can be justified.39

52. The Court made a point of acknowledging that this “justificatory standard to be met may place a heavy burden on the Crown.”40

53. The justification test as set out in Sparrow, which was developed in respect of an Aboriginal right to fish for food, social and ceremonial purposes, was affirmed to apply to treaty rights in R. v. Badger.41 Cory J., writing for the majority of the SCC, stated that:

In Sparrow, supra, certain criteria were set out pertaining to justification at pp. 1111 and following. While that case dealt with the infringement of aboriginal rights, I am of the view that these criteria should, in most cases, apply equally to the infringement of treaty rights.42 [emphasis added]

54. Cory J. went on to find that both Aboriginal and treaty rights possess in common a unique, sui generis nature, and in each case, the honour of the Crown is engaged through its relationship with the native people,43 and that the wording of s. 35(1) of the Constitution Act, 1982 supports a common approach to infringements of Aboriginal and treaty rights.44 Cory J. went on to state that “it is equally if not more important to justify prima facie infringement of treaty rights.”45

55. With respect to the first part of the justification test, the Court in Sparrow set out that conservation, public safety or prevention of harm and “other objectives found to be compelling and substantial” would be valid legislative objectives. The Court however rejected the notion that the “public interest” is a valid legislative objective, noting that this was too vague:

39 Sparrow at pp. 1113-1114. 40 Sparrow at p. 1119. 41 [1996] 1 SCR 771 (“Badger”). 42 Badger, para. 75. 43 Badger, para. 78. 44 Badger, para. 79. 45 Badger, para. 82.

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An objective aimed at preserving s. 35(1) rights by conserving and managing a natural resource, for example, would be valid. Also valid would be objectives purporting to prevent the exercise of s. 35(1) rights that would cause harm to the general populace or to aboriginal peoples themselves, or other objectives found to be compelling and substantial.

The Court of Appeal below held, at p. 331, that regulations could be valid if reasonably justified as “necessary for the proper management and conservation of the resource or in the public interest”. We find the “public interest” justification to be so vague as to provide no meaningful guidance and so broad as to be unworkable as a test for the justification of a limitation on constitutional rights.46 [emphasis added]

56. The SCC also noted the following with respect to the first branch of the justification test:

The justification of conservation and resource management, on the other hand, is surely uncontroversial … [I]t is clear that the value of conservation purposes for government legislation and action has long been recognized. Further, the conservation and management of our resources is consistent with aboriginal beliefs and practices, and, indeed, with the enhancement of aboriginal rights.47

57. More recently, in Tsilhqot’in, the SCC, in considering the justification test in the context of Aboriginal title, stated that “the compelling and substantial objective of the government must be considered from the Aboriginal perspective as well as from the perspective of the broader public.”48 The Court in Tsilhqot’in also set out that it must be first considered whether the duty to consult and accommodate has been met before proceeding with determining if there is a valid legislative objective and whether the fiduciary relationship has been maintained.

58. With respect to the second part of the justification test, the Court in Sparrow set out the doctrine of priority in determining whether the Crown has acted consistent with its fiduciary relationship to Aboriginal peoples. The Court stated:

The nature of the constitutional protection afforded by s. 35(1) in this context demands that there be a link between the question of justification and the allocation of priorities in the fishery. The constitutional recognition and affirmation of aboriginal rights may give rise to conflict with the interests of others given the limited nature of the resource. There is a clear need for guidelines that will resolve the allocational problems that arise regarding the fisheries…The constitutional

46 Sparrow at p. 1113. 47 Sparrow at pp. 1113-1114. 48 Tsilhqot’in Nation v. British Columbia, [2014] 2 SCR 257, 2014 SCC 44 (“Tsilhqot’in”), at para. 81.

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nature of the Musqueam food fishing rights means that any allocation of priorities after valid conservation measures have been implemented must give top priority to Indian food fishing.49

59. The Court also listed other factors that may be important considerations under the second part of the justification test in various circumstances, although the list was not exhaustive.50 In R. v. Nikal,51 Cory J., writing for the majority of the SCC, in affirming the justification test set out in Sparrow, added that the second part of the justification analysis is a contextual one that is infused with the standard of reasonableness:

It can, I think, properly be inferred that the concept of reasonableness forms an integral part of the Sparrow test for justification. For example, in these last questions reasonableness will be a necessary aspect of the inquiry as to justification. For instance, when considering whether there has been as little infringement as possible, the infringement must be looked at in the context of the situation presented. So long as the infringement was one which in the context of the circumstances presented could reasonably be considered to be as minimal as possible then it will meet the test. The mere fact that there could possibly be other solutions that might be considered to be a lesser infringement should not, in itself, be the basis for automatically finding that there cannot be a justification for the infringement. So too in the aspects of information and consultation the concept of reasonableness must come into play. For example, the need for the dissemination of information and a request for consultations cannot simply be denied. So long as every reasonable effort is made to inform and to consult, such efforts would suffice to meet the justification requirement52.

60. In R. v. Gladstone,53 the Court also considered the issue of reasonableness within the second part of the justification test, stating that the courts are required to scrutinize government action for reasonableness on a case-by-case basis. The Court stated, “the priority under Sparrow's justification test cannot be assessed against a precise standard but must rather be assessed in each case to determine whether the government has acted in a fashion which reflects that it has truly taken into account the existence of Aboriginal rights.”54 Furthermore, the Court stated that under Sparrow's priority doctrine, the courts should “assess the government's actions not to see whether the government has given

49 Sparrow at pp. 1114-1116. 50 Sparrow at p. 1119. 51 [1996] 1 SCR 1013 (“Nikal”). 52 Nikal at p. 1065. 53 [1996] 2 SCR 723 (“Gladstone”). 54 Gladstone, at para 63.

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exclusivity to that right (the least drastic means) but rather to determine whether the government has taken into account the existence and importance of such rights.”55

61. In summary, the justification test with respect to an established treaty right to fish is as follows:

 Has the Crown met its duty to consult and accommodate in the circumstances?

 Is there a valid compelling or substantial legislative objective?

 If so, is the Crown acting in a manner that meets the honour of the Crown and is consistent with its fiduciary relationship to the rights holders? In this regard, the Crown’s actions are scrutinized on a standard of reasonableness.

 Are the Crown’s actions minimally impairing on the right? Due to the reasonableness standard the Crown does not have to show that its actions were the least infringing option available but only that their actions were reasonable in the circumstances (i.e., were there other more reasonable management actions available?).

 Were the Crown’s actions necessary to achieve its objective? Is there a rational connection between what the Crown says it is attempting to do and what it is actually doing and are there any benefits that may arise from the Crown’s actions proportionate to the adverse effects they have on the FSC right?

62. In addition, Tsawout’s established treaty rights to fish as formerly and to hunt under the Douglas treaty, which the Crown acknowledges,56 requires the Crown to consult with Tsawout at the high end of the consultation spectrum. The BC Court of Appeal recently stated the following as it relates to consultation and the Douglas treaties:

The extent of consultation consistent with the maintenance of the honour of the Crown may be measured by considering the strength of the claim and the potential impact of the Crown action upon the rights or claim asserted. A claim founded upon treaty rights starts from a relatively firm footing. Even before the duty to consult in relation to unproven claims was settled in Haida, the Crown acknowledged a duty to

55 Gladstone, at para 63. 56 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), p. 3.

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consult and accommodate where the government has taken on the obligation of protecting a specific Aboriginal interest or where it seeks to limit an established Aboriginal interest. T reaty claims rightly occupy the high end of the spectrum of claims demanding deep consultation.57

63. The BC Court of Appeal in Chartrand also held that in the context of high-level decisions, the First Nation was only required to demonstrate that the decisions would lead to a reduction in its ongoing ability to affect policy and would have an impact upon decision- making in relation to lands and resources over which the first nation was actively advancing claims. The Court stated:

High-level decisions might be expected to have high-level effects. As the KFN argued, strategic-level decisions engage consultation with respect to how Aboriginal interests will be recognized and accommodated at the higher strategic level.58

64. As in Chartrand, strategic level decisions made by the Crown with respect to the Project, which impact Tsawout’s decision making in relation to their lands and waters, and the resources which they rely upon, including their fisheries, require a deep level of consultation. Deep and meaningful consultation between the Crown and Tsawout regarding strategic decisions related to the Project has not taken place. A prime example of the Crown’s failure to meaningfully consult with Tsawout at the strategic level is its failure, despite repeated requests, to include Tsawout on the TRC in relation to the TERMPOL review for this Project. Another example is the Crown and the Proponent’s failure to examine alternative routes for this pipeline that would avoid the Marine Shipping Route through W̱ SÁNEĆ Territory.

D. Aboriginal Title and Rights

65. In Sparrow,59 the SCC stated that recognition and affirmation of Aboriginal rights constitutionally entrenches the Crown’s fiduciary obligations towards Aboriginal peoples. As such, when dealing with the rights and title of Aboriginal peoples, the honour of the Crown is engaged.

57 Chartrand v. British Columbia (Forests, Lands and Natural Resource Operations), 2015 BCCA 345 (“Chartrand”), para. 72. 58 Chartrand, para. 70. 59 [1990] 1 S.C.R. 1075.

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66. In Delgamuukw v. British Columbia,60 the SCC stated that Aboriginal rights which are recognized and affirmed by s. 35(1) fall along a spectrum with respect to their degree of connection with the land. The existence of Aboriginal rights, including Aboriginal title, is based on the fact that when Europeans arrived in North America, Aboriginal peoples were already living her, living in communities on the land and participating in their distinctive cultures as they have done for centuries.61

67. In Delgamuukw, the Court stated:

At the one end of the spectrum, there are those Aboriginal rights which are practices, customs and traditions that are integral to the distinctive Aboriginal culture of the group claiming the right. In the middle, there are activities which, out of necessity, take place on land and indeed, might be intimately related to a particular piece of land. … Although an Aboriginal group may not be able to demonstrate title to the land, it may nevertheless have a site-specific right to engage in a particular activity.62

68. Although the constitution does not define “existing Aboriginal rights,” the SCC outlined the standard for establishing an Aboriginal right under s. 35 in R. v. Van der Peet (“Van der Peet”).63 In Van der Peet, the SCC set out the test for proving an Aboriginal right, including:

 In order to be an Aboriginal right an activity must be an element of a practice, custom or tradition integral to the distinctive culture of the Aboriginal group claiming the right.

 To be integral, a practice, custom or tradition must be of central significance to the Aboriginal society in question, one of the things which made the culture of the society distinctive.

 The practices, customs and traditions which constitute Aboriginal rights are those which have continuity with the practices, customs and traditions that existed prior to contact with European society.

60 [1997] 3 SCR 1010. 61 R. v. Van Der Peet, [1996] 2 SCR 507, para. 30 (“Van Der Peet”). 62 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, para. 138 (“Delgamuukw”). 63 Van Der Peet.

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 Courts considering a claim to the existence of an Aboriginal right must focus specifically on the practices, customs and traditions of the particular Aboriginal group claiming the right.64

69. Self-government is an Aboriginal right that is also protected by s. 35. In R v. Pamajewon,65 the SCC held that self-government rights are no different from other claims of Aboriginal rights, which are identified by the practices, customs or traditions which are integral to the distinctive culture of the Aboriginal people claiming the right, provided such a practice, custom or tradition existed prior to European contact, and continues to the present day, albeit in a modern form.66

70. In Campbell v British Columbia (Attorney General), the BC Supreme Court recognized Aboriginal self-governance and legal systems.67 The Court stated: “History, and a review of the authorities, persuades me that the Aboriginal peoples of Canada … had legal systems prior to the arrival of Europeans on this continent and that these legal systems, although

68 diminished, continued after contact.”

71. At the other end of the spectrum of Aboriginal rights is Aboriginal title.69 What Aboriginal title confers is the right to the land itself. Aboriginal title confers the right to exclusive use and occupation for a variety of activities, the right to decide how the land will be used, and the right to economically benefit from the land and its resources.70 Lands held pursuant to Aboriginal title cannot be transferred, sold or surrendered to anyone other than the Crown and the lands are inalienable to third parties.71

72. Further, Aboriginal title is a collective right that is held by all members of an Aboriginal Nation, and decisions with respect to that land are also made by that community.72 In Tsilhqot’in, the SCC (re)affirmed that Aboriginal title confers the right to decide how the land will be used, the right of enjoyment and occupancy of the land, the right to possess

64 Van Der Peet, paras. 46, 55, 63, 69. 65 R. v. Pamajewon, [1996] 2 S.C.R. 821, para. 24. 66 Pamajewon, paras. 24-25. 67 2000 BCSC 1123 at paras 180-181 (“Campbell”). 68 Campbell, para 85. 69 Delgamuukw, para. 111. 70 Delgamuukw, para. 111, 117. 71 Delgamuukw, para. 113. 72 Delgamuukw, para. 115.

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the land, the right to economic benefits of the land and the right to proactively use and manage the land.73

73. The SCC in Tsilhqot’in also set out the test that must be met in order to prove Aboriginal title in Canadian courts:

 Aboriginal title to land is based on occupation prior to assertion of European sovereignty. The date of sovereignty in British Columbia is normally considered to be 1846.74

 For the purposes of establishing Aboriginal title, occupation must possess three characteristics: sufficiency, continuity, and exclusivity.

74. To show sufficient occupancy for the purposes of title, the Aboriginal group must show effective control over lands that are used and occupied.75 To meet the test for sufficient occupation, an Aboriginal group must show that it has historically acted in a way that would communicate to third parties that it held the land for its own purposes. The Aboriginal group must have evidence of a strong presence on or over the land it is claiming, including acts of occupation that could reasonably be interpreted as demonstrating that the land in question belonged to, was controlled by, or was under the exclusive stewardship of the claimant group.76

75. In Tsilhqot’in, the Court stated:

… the kinds of acts necessary to indicate a permanent presence and intention to hold and use the land for the group’s purposes are dependent on the manner of life of the people and the nature of the land. Cultivated fields, constructed dwelling houses, invested labour, and a consistent presence on parts of the land may be sufficient, but are not essential to establish occupation. The notion of occupation must also reflect the way of life of the Aboriginal people, including those who were nomadic or semi-nomadic.77

73 Tsilhqot’in, para. 73. 74 Delgamuukw, paras. 144-145. 75 Tsilhqot’in, para. 36. 76 Tsilhqot’in, para. 20. 77 Tsilhqot’in, para. 38.

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76. Proof of occupancy is a context specific inquiry and may be established in a variety of ways, including through the laws, practices, customs and traditions of the Aboriginal group.78 The third requirement to establish Aboriginal title is exclusive occupation of the lands and waters at the time of sovereignty. The Aboriginal group must have had the intention and capacity to retain exclusive control over the lands.79

Obligation to Consult and Accommodate

77. Prior to the establishment of Aboriginal title, the Crown owes a good faith duty to consult with the Aboriginal group claiming title, and where appropriate, accommodate their interests.80 The duty to consult is a procedural duty that arises from the honour of the Crown prior to confirmation of title.81 The duty arises where the Crown has real or constructive knowledge of the potential or actual existence of Aboriginal title, and contemplates conduct that might adversely affect it. The duty to consult must be discharged prior to carrying out the action that could adversely affect the right.82

78. The level of consultation and accommodation required varies with the strength of the Aboriginal group’s claim to the land and the seriousness of the potentially adverse effect upon the interest claimed.83 The depth or richness of the required consultation increases with the strength of the prima facie Aboriginal claim and the seriousness of the potentially adverse effect upon the claimed right or title.84

79. The degree of consultation and accommodation required was described in Haida v. British Columbia (Haida). Where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high, the duty to consult lies at the high end of the Haida spectrum, which requires deep consultation by the Crown.85

78 Tsilhqot’in, paras. 35, 37. 79 Tsilhqot’in, paras. 47-48. 80 Tsilhqot’in, para. 91. 81 Tsilhqot’in, para. 78. 82 Tsilhqot’in, para. 78. 83 Tsilhqot’in, para. 89. 84In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 SCR 511, para. 39 (“Haida”); Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 SCR 650, para. 36. 85 Haida, para. 44.

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80. Although dependent on the specific circumstances, a deep consultative process might entail the opportunity to make submissions, formal participation in the decision-making process; and, the provision of written reasons which show that Aboriginal concerns were considered and how those concerns impacted on the decision.86

81. The purpose and goals of consultation is not just to meet procedural requirements, but is substantive, as noted by the SCC in Haida:

The common thread on the Crown’s part must be ‘the intention of substantially addressing [Aboriginal] concerns’ as they are raised […] through meaningful process of consultation.87

82. In addition to the process of consultation, the SCC has held that where there is a strong prima facie case establishing the claim and the consequence of proposed conduct may adversely affect the claim in a significant way, the honour of the Crown may require steps to avoid irreparable harm or to minimize the effects of infringement.88 This includes taking appropriate care to preserve the Aboriginal interest pending final resolution of the claim. As stated by the SCC in Tsilhqot’in:

Governments and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group.89

83. Trans Mountain argues that there is no duty on the Crown to engage in dialogue directly with an Aboriginal group or develop special consultation measures if an established statutory procedure will suffice but rather, it is the Crown’s duty to ensure that consultation occurs and is adequate prior to making a decision that may adversely affect potential Aboriginal rights or title.90 As stated above, the purposes of consultation is to preserve Aboriginal interests and minimize the effects of infringement prior to the

86 Haida, para. 44. 87 Haida, para. 42. 88 Haida, para. 47. 89 Tsilhqot’in, para. 97. 90 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), lines 3383-3410; Trans Mountain relies on the following cases for this premise: Katlodeeche First Nation v Canada (Attorney General), 2013 FC 458, paras 150-153; Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, paras 2, 22, 40; Conseil des Innus de Ekuanitshit v Canada (Procureur général), 2013 FC 418, para 113; Brokenhead Ojibway Nation v Canada (Attorney General), 2009 FC 484, paras 25-26, 42.

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resolution of pending Aboriginal claim.91 This involves considering, in a substantive way, Aboriginal concerns with a proposed development within the Aboriginal groups territory, and accommodate those impacts when they are significant.92

84. The courts have been clear that the Board is obligated to carry out its mandate in a manner that respects the provisions of s. 35.93 The Federal Court of Appeal recently stated that he Board’s mandate includes ensuring the interests of Aboriginal groups in relation to the Project approval application are considered by it and by the Project proponent.94 In exercising that mandate, the Board must bear in mind that the “controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake.”95

85. In addition to their established Douglas Treaty rights, Tsawout asserts Aboriginal rights, including title, in the areas of their Territory impacted by the Project. They have a strong strength of claim to title to Tsawout Territory, including in the Project Area, based on the test set out in Tsilhqot’in. There is a strong prima facie claim that the Douglas Treaty did not extinguish Aboriginal rights and title.96

86. We summarize below the evidence before the Board related to Tsawout’s Aboriginal title, sufficient to support a strong prima facie strength of claim in the area of the W̱ SÁNEĆ Territory where the Project will be carried out and where it will have impacts and effects.

87. Given Tsawout’s established Treaty Rights and strong prima facie strength of claim to the Project Area, that the potential impacts to Tsawout title and rights from the Project are significant to Tsawout and other members of the Tsawout Nation, and the risk of non- compensable damage is high, the duty to consult lies at the high end of the Haida spectrum. Unquestionably, deep consultations between the Crown and Tsawout must take place, which requires the Crown to:

91 Haida, para. 44. 92 In Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 (“Little Salmon”), para. 39, the Court held that participation in a forum created for other purposes may satisfy the duty to consult if in substance an appropriate level of consultation is provided. 93 Chippewas of the Thames First Nation v. Enbridge Pipelines Inc., 2015 FCA 222, para. 61 (COTTFN). 94 COTTFN, para. 62. 95 Haida, para 45. 96 Chartrand v. The District Manager, 2013 BCSC 1068, at para. 138.

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 substantially address Tsawout’s concerns as they are raised;

 provide justification for potential infringements and

 accommodate Tsawout’s interests.

88. These consultations between the Crown and Tsawout remain outstanding.

89. The Board, in conducting its assessment and making its recommendations to the Governor in Council, must consider Tsawout’s Treaty right to carry on their fisheries as formerly and Tsawout’s Aboriginal title and rights, in order to carry out its mandate under both NEBA and CEAA in a way that respects s. 35 of the Constitution. This requires recognizing the concerns that Tsawout has brought forward with respect to the Project, the potential impacts that Tsawout has identified on their title and rights, whether the Crown has met its constitutional obligations to Tsawout, and considering whether Trans Mountain’s proposed measures adequately address Tsawout’s concerns and impacts.

90. Before the Crown could authorize the issuance of a section 52 Certificate of Public Convenience and Necessity, it must:

(a) justify the infringement to Tsawout’s Treaty right to carry out their fisheries as formerly; and

(b) meaningfully consult and accommodate Tsawout regarding all potential impacts to their Aboriginal title and rights, and treaty rights, throughout W̱ SÁNEĆ Territory.

E. Free, Prior and Informed Consent (FPIC)

91. The SCC’s decision in Tsilhqot’in clarified that Aboriginal consent for a proposed project is the means for legal and operational certainty for a proposed project, and that without obtaining consent prior to Aboriginal title being established, it might become necessary to cancel a Crown approved project upon the establishment of title if continuation of the project would unjustifiably infringe these rights. Specifically, if the Crown begins a project without consent prior to Aboriginal title being established, it may be required to cancel the project upon establishment of the title if continuation of the project would be unjustifiably infringing. The Court added:

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Government and individuals proposing to use or exploit land, whether before or after a declaration of Aboriginal title, can avoid a charge of infringement or failure to adequately consult by obtaining the consent of the interested Aboriginal group. 97 [emphasis added]

92. This acknowledgement that consent is the mechanism by which the Crown and proponents obtain legal and operational certainty is consistent with the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP).98

93. The requirement for free prior and informed consent in UNDRIP rests on the recognition that there is an urgent need to respect and promote the inherent rights of indigenous peoples, including:

Concerned that indigenous peoples have suffered from historic injustices as a result of, inter alia, their colonization and dispossession of their lands, territories and resources, thus preventing them from exercising, in particular, their right to development in accordance with their own needs and interests,

Recognizing the urgent need to respect and promote the inherent rights of indigenous peoples which derive from their political, economic and social structures and from their cultures, spiritual traditions, histories and philosophies, especially their rights to their lands, territories and resources,

Recognizing also the urgent need to respect and promote the rights of indigenous peoples affirmed in treaties, agreements and other constructive arrangements with States …99

94. Free prior and informed consent is emphasized in several articles of UNDRIP, which states clearly that FPIC is required specifically, though not only, in situations in which a development project may affect Indigenous lands and territories or the resources located in such lands and territories:

Article 32

1. Indigenous peoples have the right to determine and develop priorities and strategies for the development or use of their lands or territories and other resources.

97 Tsilhqot’in, paras. 92, 97. 98 UN General Assembly, United Nations Declaration on the Rights of Indigenous Peoples : resolution / adopted by the General Assembly, 2 October 2007, A/RES/61/295 (“UNDRIP”), online at: http://www.un.org/esa/socdev/unpfii/documents/DRIPS_en.pdf 99 UNDRIP, Annex.

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2. States shall consult and cooperate in good faith with the indigenous peoples concerned through their own representative institutions in order to obtain their free and informed consent prior to the approval of any project affecting their lands or territories and other resources, particularly in connection with the development, utilization or exploitation of mineral, water or other resources.

3. States shall provide effective mechanisms for just and fair redress for any such activities, and appropriate measures shall be taken to mitigate adverse environmental, economic, social, cultural or spiritual impact.100 [emphasis added]

95. Given the length of the marine component within W̱ SÁNEĆ Territory, the magnitude of potential impacts, the environmental effects and the risks of this Project, as described herein, recognition and respect for Tsawout’s established Treaty rights to carry on their fisheries as formerly and their inherent and constitutionally protected Aboriginal rights, including title, require that the Project not proceed unless and until Tsawout’s free, prior and informed consent is provided. It is relevant that the Government of Canada has recently publicly confirmed its commitment to proceeding on the basis of a nation-to- nation relationship with Indigenous Peoples, based on rights, respect, cooperation and partnership, including implementation of UNDRIP.101

F. Tsawout First Nation

96. Tsawout is one of five bands comprising the Saanich (or in their SENĆOŦEN language, the W̱ SÁNEĆ Nation) which also includes the Tsartlip, Tseycum, Malahat and Pauquachin.102 The W̱ SÁNEĆ are salt water people who rely on the lands and waters of their Territory to sustain their language, culture and traditions.

97. Historically, the W̱ SÁNEĆ comprised a single group, or knot, of extended families who shared the SENĆOŦEN language and a cultural order that revolved around their relations with all parts of their Territory, including marine creatures, plants, terrestrial animals, spirit beings, and with one another. The W̱ SÁNEĆ families exploited different ecological niches within the W̱ SÁNEĆ world, tailoring their seasonal movements according to the timing of

100 UNDRIP, Article 32. 101 Minister of Indigenous and Northern Affairs Mandate Letter, Rt. Hon. Justin Trudeau, P.C., M.P., November 2015, online at: http://pm.gc.ca/eng/minister-indigenous-and-northern-affairs-mandate-letter; see also Speech from the Throne to Open the First Session of the Forty-second Parliament of Canada, December 4, 2015, online at: http://www.speech.gc.ca/en/content/making-real-change-happen. 102 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 38.

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local events.103 The W̱ SÁNEĆ were one people who spoke SENĆOŦEN and lived by an ancient, time-proven, strict system of ownership/stewardship for sharing the land, beaches, and sea of the W̱ SÁNEĆ home place. Different families lived in different places throughout the islands, depending on seasonal needs and family alliances.104

98. The W̱ SÁNEĆ are part of a larger cultural group known as the who, according to W̱ SÁNEĆ oral history, ethnographic and historical research, and archaeological findings, have occupied the Gulf of Georgia continuously for thousands of years.105 Northern Straits Salish dialect, including SENĆOŦEN, was spoken from Saanich Inlet on Vancouver Island to Point Roberts and Boundary Bay on the mainland coast, and throughout the San Juan and southern Gulf Islands in between.106

99. Tsawout means “Houses on the Hill,” a name it derives from the way its villages appeared to paddlers entering Saanichton Bay. It can also be referred to as or “Houses in the Air”, because when one is sitting in the water looking towards the village, the houses have the illusion of being lifted up or floating in the air.107 The practice of naming places and locations as they would appear to people approaching by canoe is a perfect illustration of how fundamental the traditional marine territory is to the W̱ SÁNEĆ worldview and traditional way of life.108

100. Currently, Tsawout First Nation has a total of 877 registered members109, with 505 registered members living in Tsawout’s main reserve and largest village, East Saanich IR No. 2. An additional 358 registered band members live on other reserves, or off-reserve. In addition to East Saanich, Tsawout has smaller reserves on Saturna, Pender and Bare Islands, at the entrance to Fulford Harbour on Saltspring Island, and at the mouth of the Goldstream River on Vancouver Island.110

(1) W̱ SÁNEĆ Territory

101. In Claxton, the BCCA held that:

103 Exhibit C355-15-18 -Tsawout First Nation Marine Use Study (MUS) Part 1 of 4 (A4Q1F5), p. 29. 104 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 36. 105 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 38. 106 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 38. 107 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11440 (Earl Claxton Jr.). 108 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 39. 109 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 16. 110 Exhibit C355-15-18 -Tsawout First Nation Marine Use Study (MUS) Part 1 of 4 (A4Q1F5), p. 29.

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The Saanich people are identified with settlements on the east and west coasts of Saanich Arm and on neighboring islands in the straits to the east in the earliest written records noting Indians of this region. They lived in permanent winter villages at sheltered bays and all had temporary camps where they harvested fish, berries, root crops and other resources at appropriate seasons. The winter village locations were also permanent quarters for settled populations. Unlike the Plains Indians who were nomadic hunters, the Saanich Indians lived a relatively sedentary life along the coast of the Saanich Peninsula.

Saanich villages were situated in three principal locations on Saanich Arm in the mid- nineteenth century - at Brentwood Bay and Union Bay (Patricia Bay) on Saanich Inlet and at Saanichton Bay on the east coast of Saanich Arm. According to native account, forbears of the present Tsawout people have lived at Saanichton Bay for as long as anyone knows. This bay was the location of one of, if not the most important permanent villages, providing sheltered, calm waters where winter fishing and hunting could be carried on when weather conditions made fishing in more open waters hazardous. Saanichton Bay provided a wide variety of fish, shellfish, sea mammals, and waterfowl important in the economy and diet of the Saanich people.

As did their predecessors, the Tsawout Band rely on the ocean water resources, particularly on the waters and resources of Saanichton Bay. For as long as anyone can remember, the Tsawout Indians have carried on an important stationary crab fishery in the location of the proposed marina basin. Although some crabbing is done by boat, the most convenient and often used method of harvesting crabs is to wade at low tide in to that location, and use the traditional raking method. Clams and other shellfish have, in the past, been and remain an important part of the diet of the Tsawout. They are gathered at various places around the bay including in and around the proposed marina site.

Salmon have been historically relied upon by the Tsawout both from the larger traditional territory and from the confines of Saanichton Bay and continue to be important. Spring salmon are fished only in and around the bay where they come to feed. Coho, herring and smelt have been relied upon in the past and are looked to as a food sources at the present time. Bottom fish such as cod, flounder, skate and halibut are taken from the bay as food. Several species of trout and in particular cut-throat trout are also harvested from the bay for food.111

102. The W̱ SÁNEĆ Nation also includes the Tsartlip, Tseycum, Malahat and Pauquachin. Each of these communities represents a permanent W̱ SÁNEĆ winter settlement located on the Saanich Peninsula or southern Vancouver Island that has been occupied continuously since at least the middle of the 19th century. Historically, these communities were simply

111 Claxton, paras. 6-9.

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different Saanich villages comprised of interconnected families and households.112 Tsawout’s main village site is located on Saanichton Bay, on the east side of the Saanich Peninsula on what is now called Vancouver Island, at a site that has been continuously occupied by W̱ SÁNEĆ families for many centuries.113

103. There are recorded W̱ SÁNEĆ villages throughout the San Juan and southern Gulf Islands on Sidney, Stuart, Saltspring and Mayne Islands. W̱ SÁNEĆ Territory encompasses the eastern shore of Saltspring Island, the islands east of Saltspring and south of Active Pass and as far as the Northern shores of Orcas and San Juan Islands, which includes North and South Pender, Samuel, and Saturna Islands, as well as the several smaller islands between the Gulf and San Juans.114

104. W̱ SÁNEĆ families traditionally spent six to nine months on the waters of their traditional territory, harvesting resources or traveling between summer camps and established harvesting areas. W̱ SÁNEĆ Nation’s traditional movements through W̱ SÁNEĆ Territory are described below:

We can call the W̱ SÁNEĆ Peninsula our headquarters because this is where we built permanent winter homes. This is where we stayed in large villages. Our land went east through the San Juan Islands and northeast across Georgia Strait to Boundary Bay. In the summer our families traveled through our territory to fish and gather food. When we traveled we made temporary homes near to places where we were fishing and gathering food. The lands and seas we called our territory were the lands and seas that we traditionally used.115

105. SENĆOŦEN place names were given to every bay, stream, mountain, lake, village site, island and inlet in W̱ SÁNEĆ territory, which helped to define W̱ SÁNEĆ identity, land and water. The SENĆOŦEN place names speak to W̱ SÁNEĆ’s longstanding relationship to their lands and waters.116 The SENĆOŦEN place names were gathered by W̱ SÁNEĆ Elders and then passed on through the generations. As noted by Eric Pelkey in his oral evidence, “our Elders have always told us that your territory is reflected by the SENĆOŦEN names.117

112 Exhibit C355-15-18 -Tsawout First Nation Marine Use Study (MUS) Part 1 of 4 (A4Q1F5), p. 35. 113 Exhibit C355-15-18 -Tsawout First Nation Marine Use Study (MUS) Part 1 of 4 (A4Q1F5), p. 29. 114 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 58. 115 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 55. 116 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 12. 117 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11394.

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106. For instance, there are SENĆOŦEN names for nearly all of the southern Gulf and San Juan Islands.118 Prevost Island is called WASWEM meaning “place of seal”. Blakely Island is XEMXEMICL, which means “place of cattails,” Sucia Island or LAUKEMEN means “place of mussels,” and the northwestern San Juan Island known as Stuart Island is called KENES, which “means whale, (and) used to be (a) fishing camp. The Island of Spieden, known as XODEL in W̱ SÁNEĆ, is “said to be the mother of Mandarte”. Mandarte Island is XOXDEL in W̱ SÁNEĆ, and “said to be the daughter of XODEL (Spieden Island)”119

107. D’Arcy, Little D’Arcy, Sidney and James Islands are the closest islands to Saanichton Bay on the Saanich Peninsula and there are W̱ SÁNEĆ names associated with all of them, as well as nearly all of the small islands close to the shores of the Saanich Peninsula, including Coal, Shell, Piers, Arbutus, Moresby, Portland, and Halibut Islands, and the Gooch Island Group.120

108. In addition to settlements throughout the San Juan and Southern Gulf Islands, W̱ SÁNEĆ families traveled across the Strait of Georgia to a seasonal settlement at Point Roberts on the mainland where they owned salmon fishing sites alongside other Straits Salish‐ speaking First Nations. References in the Fort Langley journals from the late 1820s indicate that this village was occupied between the beginning of May and the end of October. During this time, Saanich people were also observed going to the salmon fisheries near Yale in July, and again in September 121 The Saanich have had a very long association with Point Roberts, and have an immemorial claim to a reef-net fishing site off Point Roberts."122

109. As noted by Eric Pelkey, the place names show the places of importance used by W̱ SÁNEĆ people:

… We don't see lines on our maps, we don't see lines that say, ‘This side of the line's ours and that side of the line is yours.’ We show the place names to show that the places that are of importance to us and the places that we actually use. And as you see that it goes right from the Greater Victoria area all the way through the Saanich Peninsula to the Gulf Islands and all the way over the Lower Mainland and Boundary Bay, Point Roberts. All those areas down to and all the way down to Elwha, we have those place names in the San Juan Islands and the Gulf Islands. All of those

118 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 59. 119 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 59. 120 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 60. 121 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 54. 122 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 56.

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things reflect the territory that we use and that even though it's right across the water we use all of those territories.

And when we interviewed our people that are still practising their Aboriginal and Douglas Treaty rights, we have placed every one of them on the map, and that map covers this entire territory and even covers all the way across the water to show that our people are still continuously using our territory … and we've documented everything that they’ve been accessing in different types of resources. Not only fish, but all types of resources throughout our territory are documented by our interviews of our Douglas Treaty practitioners and our Elders.123

(2) W̱ SÁNEĆ Laws and Governance

110. Tsawout’s social and cultural life is driven by the W̱ SÁNEĆ relationship with the marine environment.124 Straits Salish people’s beliefs about their habitat, and the practical and material aspects of their harvesting practices and seasonal use of their territory is described as follows:

The people are not separate from the territory, but part of it. This territory has physical resources distributed throughout in a variety of places and abundance; some places are rich in one thing for a period of time, and then another place, rich in another. This leads to the annual round of movement through the territory, with one of the primary purposes being to return to the winter village with the largest amount of the widest selection of resources.

The same land has spiritual power distributed throughout in a variety of ways. This power could be quested for and obtained. The acquisition of this power often resulted in the accumulation of more food, which was therefore sacred. The acquisition of food had a spiritual side to it, which could not be easily separated from its practical side ...

In this way the territory is a storehouse of raw material, a training ground, a sacred place or church and a history book. From earliest childhood till death the territory provided a broad stage, traveled over in the quest for food and material during the annual round.125

111. In his sworn evidence, Chief Harvey Underwood stated:

We always thank the creator for our lands, waters and resources. It is our responsibility to take care of all of these gifts and we take this responsibility seriously. We have been stewards of the land and waters of our Territory for a very long time now. Our ancestors and our elders knew how to care for the land, and

123 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11395-11396. 124 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), pp. 70-71. 125 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), pp. 39-40.

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now western science is looking to us because, in many respects, the care and protection we have been providing is very scientific.126

112. A reliance on salmon is central to all Coast Salish nations, their seasonal rounds and cultures, so much so that they are sometimes called the “salmon people”. However, the W̱ SÁNEĆ were unique in the locations and techniques they used to harvest this sacred fish. The W̱ SÁNEĆ went to sea to get salmon, and travelled and relied primarily on the marine waters of W̱ SÁNEĆ Territory to harvest salmon, which is why W̱ SÁNEĆ are known as the salt water people.127

113. The W̱ SÁNEĆ people believe that the salmon are their relatives and that they come to feed the people with their own flesh. As such they show their respect for the salmon with the first salmon rite. Historically, this involved a cessation of all fishing activities for up to ten days while the people prepared, ate and celebrated the salmon in ritual ways. The timing of this celebration was likely at the peak of the salmon run traveling through W̱ SÁNEĆ territory, which allowed salmon stocks to return to their rivers to spawn, and to sustain those lineages or stocks.128

114. Several Tsawout Elders and knowledge holders have spoken about fish being the ancestors. Belinda Claxton stated in her oral evidence before the Board:

And talking about the fish, my brother, my late brother, always introduced the different types of bottom fish as nephew or some other type of relation. He always introduced one to the other. They were all our relatives.129

115. Tsawout Knowledge Holders, Earl Claxton Sr. and Ray Sam have stated:

We know fish as our relatives. These waters were once teeming with fish and we were taught they too were once people. This belief provides another teaching we hold, helpfulness and good work.

We managed our fishery carefully, letting some of the strong ones we caught swim free, so their kind would survive and thrive in coming years. We let the salmon runs go by for many days before we took what we needed to eat, as well as to preserve for the winter. Whatever we fished or hunted, it was our EK, SAN SAU, or laws, that

126 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 20. 127 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 38; Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), paras. 10-11. 128 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 40. 129 November 28, 2014 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11527.

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you give out your first catch, as a reminder of the SYA, the powers taken from the animal. You give it all away to the Elders and the children. You don’t keep it for yourself. You put the bones and other parts that couldn’t be eaten or used back in the sea.130

116. The principle of respect is an integral part of the Saanich people’s worldview.131 Chief Harvey Underwood explained this in his evidence:

When it comes to fishing, we respect the areas we fish in so that there will be plenty left for when we fish there the next time. We fish for what we need. Part of the reason we are happy to be bringing back the reef net is that it is a method which in the past allowed us to practice conservation of salmon. At the reef net, we can separate the females and males, and only take the males for food. Principles of conservation are used for clams, oysters and urchins as well. When we gather those species, we are thinking of the future, taking enough so that there will be more next time. It is refreshing to our bodies to eat that seafood. Given that these seafoods are health to our body and we have to eat it, we need to make sure there will be enough, not only for us, but for our children and grandchildren.132

117. The concept of respect is central to reef-netting, such that reef-netting would not be successful without the Saanich Peoples deep respect for the salmon, the earth, and each other. 133 For example, Chief Underwood observes that the ring of willow that was woven into the end of the net in order to allow some of the salmon to escape is simple and effective conservation measure was in fact borne of a profound respect for the salmon. It was believed that the runs of salmon were lineages, and if some were allowed to return to their home rivers, then those lineages would always continue.134

118. Earl Claxton states that the relationship between families and their reefnet sites is better understood as families belonging to their sites, which reflects the W̱ SÁNEĆ view of themselves as elemental, and of everything within their habitat.135 As such, reef-net fishing was also a model of respect, interconnectedness, governance and management for past, present and future generations of W̱ SÁNEĆ people.136

130 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), pp. 40-41. 131 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43. 132 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 21. 133 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43. 134 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43. 135 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43. 136 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43.

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119. Sharing of marine resources is also a distinct part of traditional food harvesting and responsibilities of the W̱ SÁNEĆ, and remains central to how Tsawout members maintain cultural identity and exercise their Treaty fishing rights. Harvesting and sharing marine resources is a part of Tsawout’s self-actualization, enactment of identity and kinship, and celebration of the good life. It enables access to cherished food from familiar places, given and received by equally cherished family members, who in turn enact traditional roles and values by sharing. 137

120. The harvesting and sharing of marine resources is both the expression and the backbone of members’ ȾEX̱ TÁLEṈ, or the sum of the traditions inherited from their ancestors.138 The word ȾEX̱ TÁLEṈ describes the act of being out on the Territory, observing, marking and managing the state of the marine environment and its resources.139

121. Tsawout community member and knowledge holder, Floyd Pelkey, notes that traditional foods deserve special treatment, and do not fall into the same category of meaning as food from the grocery store, which are not subject to the same system of sharing and reciprocity. Marine foods are considered by Tsawout members to be as much medicine as they are food. 140

122. Chief Harvey Underwood also gave evidence as to the importance of the special treatment for the gathering of foods:

You prepare yourself before you go out fishing, hunting or gathering. You have to go out with good feelings in your heart when you are gathering traditional foods. If you are out with others from your family, you all go out with the right spirit. This is one of our protocols. Different families have different ways of doing this. Some families bathe early in the morning before they go out, while others meditate and pray in particular areas before they go out.141

123. Other Tsawout knowledge holders gave evidence of how various species act as indicators, which then speak to when certain foods can be harvested. Belinda Claxton gave the following evidence:

137 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), pp. 70-71. 138 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), pp. 70-71. 139 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 39. 140 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 71. 141 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 22.

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When the ocean spray is at its peak and it starts to flower, it's an indicator to let us know that Sockeye is at its peak. Birds are also indicators. They're indicators to all the birds, that they're all indicators to other animals as well as to us SENCOŦEN people.142

124. Tsawout members continue to rely on W̱ SÁNEĆ laws and governance to harvest and manage W̱ SÁNEĆ territory. For example, Tsawout continues to manage eelgrass beds according to traditional knowledge and are currently working to revitalize clam beds in parts of their territory, relying on our traditional knowledge. Belinda Claxton spoke of her work, in partnership with others, to restore the clam beds:

Today I’m talking about restoration and I work with a lot of non-Native people in the Gulf Islands trying to restore the clam beds, the oyster beds, because - trying to make it a little more plentiful because it’s just getting less and less every day and we’re having success with that right now. So we’re trying to encourage our non- Native friends to restore those beds and make them active again, as well as people in the local areas here in Victoria and in Saanich.143

125. As Chief Underwood stated in his evidence, “You need the right sand and the right currents for the clam beds, and our Elders have that knowledge and are passing it on to the next generation.144

126. Within W̱ SÁNEĆ longhouse tradition, certain families inherit and hold exclusive responsibility for specific aspects of the longhouse ceremonies, such as providing the wood and tending the fire. Members of a family with a specific responsibility in the longhouse would be sent to quest for a spirit that would bestow a power or ability that would be beneficial in the fulfillment of the family’s responsibility. 145

127. Spirits and their corresponding powers and abilities could also be inherited. For example, a fisherman with a spirit that bestowed an ability to fish might not only pass down his spirit and a corresponding prowess related to fishing within his family, but also his role or function within the community. This may explain a pattern of roles performed exclusively by members of specific W̱ SÁNEĆ families.146

142 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11525. 143 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11533. 144 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 23. 145 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 41. 146 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 41.

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128. For example, during interviews for Tsawout’s Marine Use Study, it was noted that for generations one family was responsible for providing marine foods for Tsawout community functions, another for providing ducks for longhouse ceremonies, and another for tending the fires in the longhouse. Interview participants referred to this role, and the individual who embodies it, as a Provider, and it is evidence of the pervasive and culturally important notion that every W̱ SÁNEĆ individual has a role to play in the community, and that the purpose of a good life is, in some senses, to acquire the necessary knowledge, and rise to the responsibility of that role. To find one’s place in the order of the W̱ SÁNEĆ community is to find one’s place in the world.147

129. The formal institutionalization of roles is related to social hierarchies within W̱ SÁNEĆ society, in which knowledge is considered private property, a commodity owned, protected and passed down by the individual and/or family. Families with inherited knowledge, or ĆELÁṈEN, were considered to be higher class, and not just when their knowledge concerned practical and material advantages. For example, knowledge, or advice concerning basic etiquette and manners, such as “don't lie,” “don't steal”, and “be polite”, are considered a possession to be passed down within the family, and borne as a marker of social class. 148

130. Higher class people, for example, distinguish themselves through their possession of knowledge concerning how to be polite. In this way Coast Salish morality was taught and encouraged with social sanctions as opposed to supernatural ones, and valued as one of the non-material possessions indicating a family's class level.149

131. As described by Tsawout researcher and knowledge holder Nicholas Claxton, the Elder of a family inherited the right to the family history and teachings, or NE,HIMET, which is to be passed on orally. NE,HIMET includes the following:

 S,IST - What was owned, all that was in your canoe, belongings, your assets in modern terms.

 SX'OLE - Reef net

147 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 41. 148 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 42. 149 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 42.

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 SX’IX’ŦE - Land, summer home location

 SW'ÁLET - Physical fishing location

 SMIEŦ - Hunting grounds in and around summer home

 ЌO - Fresh water supply

 Á,LEN - House, longhouse

 TEṈEW’- Land150

132. In the context of the reefnet fishery, the family elder also inherited the right to be captain, or CWENALYEN, of the family's reefnet fishery. Along with the inherited rights to all this knowledge came the responsibility for passing it on.151

133. W̱ SÁNEĆ laws continue to govern the harvest of marine resources by Tsawout members. For example, Aaron Sam gave the following evidence:

And I fast for my Elders for providing all the seafood. I get urchins. I get Dungeness crab, clams, everything out in the ocean, because my Elders told me that was my store and I have to look after it and provide for anybody who needs it, because the Elders that I provide for are old and they can't go do it no more. So my father gave me the job to do everything for the Elders … from Put Over Bay all the way up to Saturna, that’s my playground for my Elders. And, you know, they come first, then me last. I fast; I don’t eat until my job’s done.152

G. Tsawout’s Traditional Use and Occupancy of W̱ SÁNEĆ Territory

(1) The seasonal round

134. W̱ SÁNEĆ marine and land use was defined by an annual seasonal round of movement between locations that provided a great variety of resources, but with availability fluctuating according to the season, and over the long term. The dominant force in this cultural pattern of movement was the salmon, and in particular the most prized of all salmon species, the sockeye. Historically, pursuit of this sacred and seasonally abundant food drove the W̱ SÁNEĆ from their winter villages to summer settlements at sites in the

150 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 42. 151 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 42. 152 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11477, 11491

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San Juan and southern Gulf Islands, throughout Active Pass, and at Point Roberts near the mouth of the Fraser River.153

135. In the waters and on the lands along the salmon migration routes, the W̱ SÁNEĆ harvested a great variety of marine resources and hunted waterfowl and deer. The purpose of the seasonal round was to return to the winter village having harvested and preserved as much as possible of the resources available in order to sustain families at home through the harshest few months of the year.154

136. One important thing to understand about the W̱ SÁNEĆ seasonal round and harvesting practices is that nature is exploited by the intensive use of specific places at specific times in the year, so that the yearly round is fairly rigidly determined. The W̱ SÁNEĆ’s well established seasonal round is based upon the traditional Saanich calendar, which included thirteen moons, and was dictated by seasonal changes within the natural environment.155 A visual picture of the thirteen moons and the description of each moon and what is gathered is found at pages 51 through 53 of the Tsawout Marine Use Study.156

137. During the winter, dried salmon served as the main food staple supplemented with dried berries, some fresh fish, waterfowl, intertidal shellfish and seaweed. Game, such as deer, was also major food resource. Winter is also a time when ceremonial activity (such as dancing and initiation rites) takes place.157

138. With the onset of spring, various other marine resources were exploited such as seals, spring salmon, rock cod, grilse, halibut and herring. Land mammals, such as deer and elk, were more frequently exploited with the better weather. Plant harvesting for such species as camas would occur in May in dry, rocky shore locations. A late spring movement of families out of the sheltered waters of Saanich Inlet progressed through the Gulf Islands, where fishing would occur, and to Point Roberts, where the W̱ SÁNEĆ would net sockeye and humpback.158

153 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 49. 154 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 49. 155 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 50. 156 See Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), pp. 51-53. 157 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 50. 158 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 50.

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139. Tsawout continues to be an active harvesting community where members engage in traditional food harvests. The harvesting of large quantities suitable for sharing, community events, and satisfying community demand is concentrated in the hands of a number of superharvesters. These very active harvesters are often specialists in certain species and have often inherited the role, and the traditional knowledge and expertise that accompanies it, from parents and grandparents. Some of these harvesters have the designation of “Provider” within the longhouse tradition. For these individuals, harvesting makes up a full or part-time, non‐market based commitment involving, in some cases, high fuel and equipment costs to the individual, and reliance on donations of equipment.159

140. Today, Tsawout members note the most active period for harvesting runs from the summer months starting in June and continuing into the fall and early winter. The least active harvesting months for the community appear to be December and January, which illustrates the ongoing traditional W̱ SÁNEĆ calendar.160 Tsawout superharvesters, however, begin much earlier in the year, reporting that activity increases every month from February onward, with June as their most active month.161

(2) Marine Foods

141. The results of surveys carried out as part of the Tsawout Marine Use Study indicate that marine foods make up a substantial and preferred part of the diet of Tsawout members.

142. Responses from the community-wide survey recorded an average score of 61 or several times a week on a scale between “Once a year (0)” and “Everyday (100)” for the consumption of marine foods. This suggests that Tsawout community members consume and rely on marine foods regularly.162 Most community members who responded to the online survey identify harvesting and receiving marine resources in the last year. Indeed, overall 76 per cent of respondents reported harvesting, and most (79 per cent) of these harvesters also reported that they were also recipients of marine resources from other active members, or community events. 20% of respondents received marine foods but did not harvest them.163

159 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 70. 160 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 68. 161 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 68. 162 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 66. 163 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 66.

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143. Over three quarters (80%) of the superharvesters surveyed monthly consumed marine foods once to several times per week (which they personally harvested or received from others).164

144. Furthermore, most, if not all, community events held at Tsawout serve marine foods. These community events occur frequently and, during certain months, weekly. These events include fundraisers, funerals and other cultural gatherings. The majority (88 per cent) of community respondents, both members and superharvesters, attended community events or feasts in the last year where marine foods were served.165

(3) Fishing

145. Historically, the five species of Pacific Salmon and steelhead trout that frequent W̱ SÁNEĆ’s marine territory were the most important food. Springs were targeted by W̱ SÁNEĆ fishers trolling in winter, spring, and summer; silvers were fished in summer. Trolling was traditional done by a man alone in a single canoe, with a line, rock sinker, leader, hook, herring bait, and club. The W̱ SÁNEĆ also used gill nets for springs and silvers in spring and summer. The W̱ SÁNEĆ also used gillnets for herring when they ran at Ganges Harbour.166 Springs, silvers, and chum salmon were also taken with harpoon, gaff, dip net, and trawl net. Each technique was particular to only some groups, but the gaff was used by all.167

146. However, the sockeye was and is by far the most prized of all five salmon species to the W̱ SÁNEĆ, who used and relied upon the important reefnet fishery which is part of who they are as unique indigenous salt water people, and how they carried out their fisheries as formerly. The reefnet fishery is a primary fishing method and way of life.

147. According to Researcher and Knowledge Holder, Nick Claxton, reef-net fishing was not only a way of life in the fullest sense of the term, but “what it meant in large part to be a Saanich person”168 According to W̱ SÁNEĆ teachings, reef-netting was given as a gift from the Salmon People to the W̱ SÁNEĆ in exchange for a beautiful Saanich princess. It was

164 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 66. 165 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 66. 166 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 91. 167 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 92. 168 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43.

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intended that this fishing method was given (to) allow the W̱ SÁNEĆ to prosper in their own lands and waters, and live in harmony with the salmon forever.169

148. Tsawout Knowledge Holder, Eric Pelkey, discussed the protection and ownership of reef- net sites:

Really, the only areas that were really owned and protected by the families were the reef net areas. The reef net areas were a hereditary right that were passed down from generation to generation, and you had a right to those areas. I think that on the whole everything else was commonly held by everybody. You weren’t allowed to own anything, you weren't allowed to say that this is mine, this is my area. But people had their own knowledge about harvesting areas, and their own knowledge that was passed down from generation to generation about the special places to fish, to harvest certain plants, and they would pass that on from generation to generation ... We’d say that as long as you’re from Saanich you’re allowed to be out there anywhere in the territory to hunt and to fish ... Our resources in the community were resources that was supposed to be shared with everybody.170

149. The role of site manager and captain of the reef-netting crew was usually held by the Elder of the family, who would have inherited intricate knowledge of the site, the salmon, and all of the ritual and technical aspects of successful reef-net construction and use.171 The captain had a crew of six to twelve men, who agreed to help construct the net, prepare the gear, and participate in the fishing for the season. In exchange, the captain fed the men and divided the catch with them at the end of each day.172

150. Referring to maps of the sockeye migration route, Anthropologist Wayne Suttles noted:

The reef-net locations of the Straits tribes, which I have mapped, fall very neatly along these routes. The reef-net was used by the Straits tribes only; it was their most important fishing device; and it seems to have been used wherever it was possible to take sockeye with it. The close correspondence of language, fishing method, and fish strongly suggests that we have here an ecological niche nicely filled by human beings culturally distinguishable from all others … [Thus] the Straits tribes are the people of the channels leading to the Fraser.173

151. For a number of years now, Tsawout has been taking steps to reclaim and revitalize the practice of reef-netting in W̱ SÁNEĆ Territory, after many decades of being prevented from

169 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 42. 170 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 36. 171 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 43. 172 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 44. 173 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 38.

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engaging in this practice by the DFO. It is an important aspect of exercising and protecting their s. 35 Treaty fishing right for present and future generations. It is important to note that the location of the W̱ SÁNEĆ reef net sites is along what is called the path of the salmon. The Marine Shipping Route for the Project intersects with these sites through the W̱ SÁNEĆ Territory.174

152. Given Canada’s outlawing of the reef net fishery, Tsawout harvesters currently fish by other methods. For example, every year, Salish Strait Seafoods goes seining for Tsawout’s food fishery. Salish Strait Seafoods is equally owned and run by Tsawout, Malahat, T’sou- ke, Scia’new, and Snaw-naw-as First Nations.175 Dan Claxton, who works for Salish Strait Seafoods, stated the following:

I usually try and get 10,000 sockeye for the community, which doesn't go far. There's a 1000 members right? So I try to give 60 to a house, that's on a good year. Like last year [2013] was a bad year. Twelve [fish] last year.176

153. Numerous salmon fishing sites are directly within the LSA for the Project, spanning the length of the border between Canada and the United States, all the way from the waters south-east of Saturna Island to points due west of San Juan Island. In addition to these, salmon fishing sites exposed to the LSA were reported between Tumbo and Saturna Islands, along the southern shores of Saturna and Pender Islands, surrounding Moresby, Sidney, James, D’Arcy and Little D’Arcy Islands, and dotting the waters east and south of Coal Island as well as Vancouver Island, all the way from Saanichton Bay to Port Renfrew. Superharvesters and MUS interview participants also favour the open channel off the eastern shores of the gulf islands from Saturna, past south Pender and Sidney Islands, south to Cordova Bay.177 Most, if not all of the Salish Strait Seafoods’ current fishing occurs within W̱ SÁNEĆ waters in the Project’s RSA, including within and across the LSA.178

154. Halibut was second only to salmon in terms of importance and preference among most Straits Salish groups. Halibut were once numerous on banks off the southern shore of Vancouver Island and in Haro and Rosario Straits.179

174 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11398, 11582. 175 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 109. 176 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 93. 177 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 95. 178 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 109. 179 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 98.

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155. Tsawout’s superharvesters identified several locations within or partly within the LSA where they harvest halibut, including south of , south of Moresby Island, southwest of D’Arcy Island and near Halibut Island, which is a reserve. Halibut fishing in Reid Harbour at Stuart Island is located across the shipping lane.180

156. Halibut continues to be an important species to Tsawout harvesters and households. Some fishers feel that the halibut stocks in their territory have been improving in recent years. Twenty-five per cent of respondents to the general community survey reported fishing for halibut over the course of the previous 12 months, while 25 per cent of respondents reported receiving halibut from a person or event in the last year.181

157. In addition to Salmon and Halibut, species of Cod were and are fished all year round by Tsawout. Cod fishing locations include Waldron and Peavine islands (Peavine Pass) on the far side of the shipping channel. Ling cod and rock cod fishing is also done throughout the southern Gulf Islands, with Active Pass being a particularly well used spot for rock cod.182

158. Tsawout Elders described the following as places where cod fishing was noted, most of which are within or contiguous to the Project’s Marine Shipping Lane and LSA: Saanichton Bay, between San Juan and Sidney islands, from Moresby over to Pender, around Gooch Island and Sidney Islands, East Bay, the east side of Saturna (East Point), near Taylor’s Beach (south side Saturna). Elders also described fishing for ling cod in the Straits, near Stuart Island, near Saturna in Narves Bay and East Point over to Taylor’s Bay . Ling cod and rock cod fishing was identified on a reef that links Pender and Moresby Islands.183

159. One of the most important cod harvesting areas is in the area of the Marine Shipping Lanes around D’Arcy Island and Big and Little Zero islands. 184

Yeah there's a reef outside of Sidney here, probably right on that. Cause that channel goes right in and it goes right down to D’Arcy. Pretty much where we all fish at is right there. Right from D’Arcy all the way to Little Zero and Big Zero, usually where we go fishing at, and all along in here on the State side. 185

180 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 99. 181 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 99. 182 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 60. 183 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 97. 184 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), P. 97. 185 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), P. 97.

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160. In the spring of 2014, most of Tsawout’s superharvesters (75 per cent) went fishing for cod, and did so frequently (an average of 71, with 0 being sometimes and 100 being frequently, or more than 10 days in a month).186

(4) Gathering of Marine Foods

161. Crab is currently one of the most commonly harvested marine resources by Tsawout members commercially, economically, and nutritionally.187 It is relied upon as a source of wild protein. Results of from the harvest survey carried out for the Tsawout Marine Use Study indicated that the most active individuals, at the height of the season, are harvesting an average of 300 crab per day. It is one of the most

162. Crab has become extremely important to the function of the W̱ SÁNEĆ subsistence economy: Crab is one of the three main marine foods at community and longhouse events, along with salmon and sea urchins. Several of the superharvesters have described how important crab fishing is to the transmission of intergenerational knowledge about how to be a harvester, and what it means to be W̱ SÁNEĆ.188

163. The results of the superharvester survey demonstrate that the Dungeness crab fishery is highly productive for those with the time, resources, and knowledge to participate. In one four-month period, the three most active respondents individually reported between 7,000-15,000 crabs being harvesters and spent every day or nearly every day on the water. Respondents of the community wide survey catch between 4 to 100 crabs in one month, and harvested between 1 and 10 days per month.189 A majority (75 per cent) of the respondents to the online survey also actively harvest and/or receive crab through other harvesters or community events.190

164. Crab harvesting lies somewhere between the gathering and fishing modes of production. Although there are a handful of commercial crab licenses held by W̱ SÁNEĆ fishers and Salish Straits Seafood, and some superharvesters and most of the community members use

186 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 98. 187 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 73. 188 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 74. 189 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 75. 190 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 75.

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crab traps, others continue to harvest crab in a traditional manner, using long crab rakes. In fact, key Providers in the community prefer to harvest crab by raking.191

165. Eelgrass beds are a key habitat for crabs, as well as for young fish. Tsawout knowledge holders spoke of the importance of eelgrass habitat in their evidence, as well as its sensitivity to vessel wake and other impacts:

Eel grass is an important plant for the bay or for any bay. The crabs like to hide in there and also the young fish hide in there. So it’s an important - the bay - Saanichton Bay is very important to the Saanich as a rearing site for those creatures that we take from the sea….192

…We talk about the impact of tanker traffic, and it’s not just the tanker traffic, it’s the vibrations, it’s the wave action, it’s many sensitivities that are being disrupted there. Not just the fish, but the organisms that are responsible for helping the fish to stay alive in that water. And Earl, my cousin, Earl, mentioned the eelgrass, and that is one of the indicators that is really disrupted by the velocity of the waters. It really struggles to stay alive.193

166. Along with crabs, bivalves are also important marine foods to the W̱ SÁNEĆ. Mussels, oysters and clams were all harvested at low tide at the lower edge of gravel slopes and horse clams out on the mud flats.194 Tsawout Marine Use Study respondents reported harvesting butter clams, horse clams, littleneck or “steamers”, cockles and manila clams. Respondents describe harvesting cockles under the crab grass or seaweed. Cockles are harvested more frequently in the month of July, while butter, steamer and manila are harvested more often in the spring and early summer months.195

167. Despite year-round availability on nearly every bay and beach, bivalves were traditionally harvested once a year from the same sites that were considered to be the most productive. As a result, certain select beds were visited at the same time every year by a variety of different people, often from different groups. W̱ SÁNEĆ people also built and restored clam gardens in bays to increase clam production, and continue to do so today.196

191 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 73. 192 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11456 (Earl Claxton Jr.) 193 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11606 (Mavis Underwood) 194 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 77. 195 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), pp. 78-79. 196 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 78 quoting Claxton, Earl Sr. and Ray Sam, 2010, Everything with a Prayer. Saanichton: Tsawout First Nation.

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168. Tsawout members currently, and in the contemporary past, harvest bivalves from a number of concentrated locations. These include the shores surrounding Sidney and James Island, the spit at Tsawout, Bare Island, and Island View Beach, Willis point, Saturna Island, Pender Island, D’Arcy and Little D’Arcy Island. Locations exposed in the vicinity to the LSA include, Tumbo Island, East Sidney Island, Little D’Arcy Island, North Henry Island, and Bruce Bight Saturna Island. East Point, Saturna Island is a bivalve harvesting area within the LSA. Current bivalve harvesting areas that require crossing the Project’s Marine LSA include San Juan Island (Friday Harbour) and the east side of Stuart Island.197

169. However, it should be noted that a number of past bivalve harvesting areas in W̱ SÁNEĆ territory are not currently active due to pollution or loss of habitat. For example, past dredging activity at Melanie Bay and James Island removed the eel grass habitat that geoducks, clams and crabs depended on to survive.198

170. Another marine food that is regularly harvested is sea urchins. Sea urchins are a favourite food particularly amongst Elders, who consider these “sea eggs” to be both a delicacy and an important medicine. Tsawout Elders report that urchins are taken from a boat at low tide in March and April with a curved rake and later distributed at the longhouse.199

171. Between February and June, 2014, 36 per cent of the superharvesters reported gathering sea urchins. These respondents harvested urchins frequently and in large quantities, providing them for ceremonial uses. Harvests cater to private community events such as funerals or naming ceremonies.200 Sea Urchins carry great importance for the grieving process for Tsawout members. When discussing requests for traditional marine foods for funerals in particular, one Elder described the requests as coming from the deceased, or ancestors of the deceased. Fulfilling such requests is seen as answering a deep, ancestral craving, and provides a bridge between the past and the future. One survey participant noted “[Urchin] is very special to me and I rely on others who have knowledge to harvest for me.”201

172. Aaron Sam spoke of harvesting sea urchins for Elders:

197 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 81. 198 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), pp. 78-79. 199 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 82. 200 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 83. 201 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 83.

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We have the squeetci (ph). That’s medicine for my Elders. And the urchins, it’s all medicine I get for the Elders. And that’s what I’ve been practising my rights for.202 [emphasis added]

173. Compared to crab, which is harvested to varying degrees by all active harvesters, urchin harvesting is done by individuals with specialized knowledge of urchin habitat, population levels at specific sites, and harvesting techniques.203

174. Tsawout Elders interviewed in 2000 recorded traditional harvesting sites for urchin along the shorelines of Saturna, Saltspring and Pender Islands, as well as the smaller islands such as Moresby, Portland, Piers, Coal, Gooch, and the Sidney Islands.204 As part of the Marine Use Study, superharvesters reported a similar distribution of urchin harvesting sites. However, one of Tsawout’s harvesters indicates the most reliable place to harvest urchins lies across the Project’s Marine Shipping Lane from the Saanich Peninsula and within the LSA, along the northwestern shores of Stuart Island. The shores of Stuart Island are cited by current harvesters to be the single place to harvest the giant red urchin. The Project’s Marine Shipping Lane intersects the travel route used by Tsawout harvesters to get to Stuart Island. Superharvesters also report two additional active urchin harvesting sites within the LSA and the shipping lane, between Sidney and Henry Islands, and the reef along the eastern shore of Gooch Island 205

175. Tsawout people also harvest a variety of seaweeds to eat, for fishing uses, and for medicines. For example, eelgrass beds are used for food in limited quantities.206 Bull kelp, or O,EN, was gathered year round for use as food, medicine, and in cooking. LEKES, or red laver/red sea lettuce is also gathered to be dried and then used as flavouring in clam and fish soups.207

176. In 2000, Tsawout Elders indicated that seaweed gathering sites included multiple locations on Pender Island, as well as sites on Saturna, Moresby, and Ray Islands, across the shipping lane on Stuart Island, and at 10 Mile Point. In the 2002 SENĆOŦEN Alliance Study, Tsawout interviewees indicated 132 seaweed harvest sites/events. Many of these sites are exposed

202 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11491 203 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 83. 204 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 83. 205 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 83. 206 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 84. 207 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 84.

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to the LSA, including those along the southern shores of Saturna, South Pender, Moresby, Rubly, Gooch, Sidney, and James Islands, surrounding Reay, Brethour, Sheep, Domville, Forrest, and the Little Group Islands, and along the east side of Coal Island.208

(5) Hunting

177. W̱ SÁNEĆ territory is host to a variety of duck and geese species that Tsawout members traditionally hunted and continue to hunt today.

178. Before firearms, W̱ SÁNEĆ people used a variety of hunting methods tailored to a duck’s species and habitat. These included nets suspended from poles, nets on poles held by hand, nets set under water, spears, arrows, and slings. Ducks were also hunted at night using a fire on the bow of a canoe and then speared.209 Ducks and geese, were speared, clubbed, or caught in aerial nets or nets thrown over a flock sitting on the water, in the myriad small bays, channels and islets throughout the Gulf Islands.210

179. In contemporary times, Elders and young hunters alike list the following preferred duck species that are hunted: surf scoters, pintails, mallards, sea pigeon, sawbill mergansers, murres, buffleheads and widgeons. Tsawout members also hunt brant and Canada geese. Sea ducks are often hunted near clam beds where they feed.211 Marine Use Study survey respondents hunted the following duck and geese species in 2014: mallard, barrow’s goldeneye, common goldeneye, Canadian geese, brant geese, American black duck, widgeon, sawbill (mergansers), and surf scoter.212

180. Hunting locations for marine birds include Boat Pass and Mitchell Bay in the San Juans, Saanichton Bay, Saanich Inlet, the waters surrounding Sidney Island, James Island and D’Arcy Island, and generally in the open water. Several duck hunting areas exposed to the LSA include the south side of Saturna Island, at sites south and west of South Pender Island, surrounding Sidney and James Islands, and clustered heavily in Saanichton Bay, and extending south down the east coast of Vancouver Island towards Cordova Bay.213

208 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 85. 209 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 110. 210 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 60. 211 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 110. 212 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 110. 213 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 113.

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181. Tsawout members also concentrate contemporary duck hunting activities on the eastern waters of Sidney Island, Sidney Spit, Sidney Channel, the water surrounding James Island, the spit at Tsawout, and Saanichton Bay. The hunting area to the east of Sidney Island is contiguous with or approximately 1.5 km away from the LSA.214

182. The surf scoter, also referred to by respondents as “Black Duck” is a particularly important marine bird species. It is considered a sacred bird by W̱ SÁNEĆ people and is a preferred species for ceremonial use. It was the traditional food used in the smokehouse, and its feathers were and are used in the longhouse dances to initiate new dancers. Before a new dancer can touch the floor, the Black Duck feathers must be laid down to protect the dancer.215 The scoter is also a preferred species for making duck soup. Elders specifically mentioned that the ocean scoter, or scoters caught furthest from shore, as the tastiest.216

183. One MUS respondent explains that the preference for the Black Duck is specific to the W̱ SÁNEĆ community:

… We mainly relied on Black Ducks because it had a lot to do with our culture, for the smokehouse and stuff of that nature. They used them for the feathers on the floors. Other bands, say for instance the band, they depended on what they called a murre. They also ate loons. Nanaimo, … they eat same thing, and I even heard them shooting shags, mergansers and stuff, and depending on that. But Saanich people was mainly black ducks.217

184. Arbutus Island, located west of Piers Island in the waters directly north of the Saanich Peninsula, is called skewmin for the name of little black duck.218 However, respondents report that surf scoter populations are on the decline, and are consequently more expensive to find as hunters must travel farther afield in search of them. Hunters catch other species of duck to compensate; however, this affects a participant’s feeling of authenticity, and the taste of Black Duck soup is irreplaceable.219

214 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 113. 215 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 111. 216 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 111. 217 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 111. 218 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 60. 219 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 112.

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185. Duck hunting is also a harvesting activity which involves teaching younger generations. Even relatively young hunters speak directly of passing their knowledge and experiences on to their peers and those younger than themselves.220

186. In addition to hunting marine birds, W̱ SÁNEĆ people also traditionally hunt deer, and continue to do so. Elders interviewed for the 2002 SENĆOŦEN Alliance Study described traditional methods for taking deer, including pit lamping from boats in fresh and salt water around several islands including Pender Island, as well as land hunting in the form of deer drives on Pender Island. Deer netting occurred in specific, well known deer-netting locations on Mayne, Pender, Saturna and the San Juan Islands.221

187. Some Tsawout members continue to travel by boat to preferred deer hunting areas, where they anchor small outboards for transporting their harvests back to the community. Contemporary deer hunting takes place on East Saturna Island, Tumbo Island, and South Pender Island are within or contiguous to the LSA. A hunting area on Haro Island is approximately three kms from the LSA, while a hunting area on Sidney Island sits roughly two kms from the LSA. Several Tsawout hunting areas are across the Project’s Marine Shipping Lanes, on Stuart Island, Spieden Island, Johns Island, and San Juan Islands.222

188. Tsawout members have noted that there are fewer safe places from which to hunt deer within their Territory. Suitable areas to hunt are restricted to a few non-residential and permitted areas within the Gulf Island National Parks reserves, and Tsawout’s shared Reserve on Saturna Island. Saturna Island is currently a preferred hunting location for Tsawout members because of its relatively healthy deer population and fewer visitors and residents.223

(6) Spiritual and Cultural Sites

189. In addition to important reef netting and other harvesting sites that carry cultural and spiritual significance, various places within W̱ SÁNEĆ territory are the resting places of Tsawout ancestors and where their spirits reside.224 In his sworn witness statement, Corey

220 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 112. 221 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 113. 222 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 114. 223 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 114. 224 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 18.

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Joseph spoke about Tsawout burial sites in various parts of W̱ SÁNEĆ territory, including on various Southern Gulf Islands. His knowledge comes from being a gravedigger for Tsawout, for which he was trained by Bert and Harry Underwood.225

190. Eric Pelkey, in his oral testimony described some of the locations of burial sites of Tsawout ancestors in W̱ SÁNEĆ territory, referencing the map located at page 4 of Exhibit C355-10-2. He stated:

And all these little islands that are in between WEN,NÁ,NEĆ and WÁSWEN are all mostly grave islands. Grave islands that held the remains of our High Chiefs and those that are of a high blood. Many non-Indians live on those islands now, and we have heard about all of the remains of our ancestors that have been moved as a result.226

And one of the things that happened in the years that I've worked with Tsawout First Nation is that remains were found on a little island right beside TEMOSEN called Cabbage Island. … And the reason why it was so important to us is because our Elders told us any remains on that little island are people that died on TEMOSEN … the people that were going there to be trained … that’s why it’s so important to us to have those islands left as they are … we know that the remains of our ancestors are there.227

And the same thing with … the little island by South Pender, what you can see as named QENENIW. On South Pender there’s a little island called Skull Island. And what happened was that one of our people that were travelling through there spotted remains on that little island … it was a direct ancestor to my cousins buried there … and so we went to Parks Canada … when we heard that they were talking about moving those and went them - went to them and told them that we actually know who that is because it was directly a descendent - our people were directly descendent from that person.228

191. There are also important sites for Tsawout members to carry out spiritual practices within W̱ SÁNEĆ territory. For example, Chief Harvey Underwood noted that on the shores of Saanichton Bay, Tsawout members conduct burning ceremonies when someone passes on, as a form of respect to their ancestors.229 Eric Pelkey spoke of spiritual training areas, including on TEMOSEN (Tumble Island) in the Gulf Islands National Park.230 Other

225 Exhibit C355-15-17 -Tsawout First Nation Witness Statement Corey Joseph (A4Q1F3), paras. 9-10, adopted into evidence in Exhibit C355-23-6 - Affidavit J. Corey sworn Aug 19 2015 (A4S8D9), para. 2. 226 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11440. 227 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11407. 228 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11412-11414. 229 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 18. 230 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11404-11405.

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Knowledge Holders also gave evidence of spiritual and cultural importance of beaches in W̱ SÁNEĆ territory, especially as places of rites of passage for boys and girls.231

192. Chief Underwood also noted that people go out to the waters in the Territory for spiritual purposes, to meditate and to carry out their spiritual practices.232 They also use waters in the Territory for renewal and cleansing ceremonies.233

(7) Other Culturally Important Species

193. The KELȽOLEMEĆEN or orca whale, is a prominent figure in W̱ SÁNEĆ cosmology and oral history. The Orca features in various creation stories of the W̱ SÁNEĆ people, and in various stories are depicted as spiritual intermediaries between Tsawout families and the sea.234 Orcas are considered to give protection when W̱ SÁNEĆ people travel on the sea and are described as helpers.235 One origin story describes the orca and other marine species as follows:

One origin story set at Sidney Spit says that orca whale was one of seven figures who emerged at the Spit as gifts of belonging to the Tsawout people, including salmon, red snapper, rock cod, kelp, lingcod, deep water bullhead and chum salmon. These gifts offered Tsawout a connection to the sea, and are considered to be imbedded in the rights that the SXI,XI gave to the people for the lands and waters.236

194. In his affidavit, Chief Harvey explained the significance of whales to the W̱ SÁNEĆ people:

The whales are like us and are our relatives… There are clans and families that are connected to killer whales, which are linked with our masks that we use in the feast house.237

195. The relationship between whales and Tsawout members continues, as was described in relation to the reefnet fishing that was carried out this summer by Tsawout and other W̱ SÁNEĆ.

231 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11535. 232 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 18. 233 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para 18. 234 Tsawout First Nation Marine Use Study (MUS) Part 4 of 4, p. 115 235 Tsawout First Nation Marine Use Study (MUS) Part 4 of 4, p. 115 236 Tsawout First Nation Marine Use Study (MUS) Part 4 of 4, p. 115 237 Exhibit 355-15-2, Affidavit of Harvey Underwood (A4Q1D4), paras. 29-30

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Tsawout members believe that they still share special relations with Orca. At an August event to re-establish the traditional reefnet fishery on Pender Island, a pod of orca whales passed over the old and future reef net site, just as Tsawout members arrived to begin setting the anchors and net. This is the first time they had done this in several generations. Their presence was considered a great blessing, and attendees felt the whales were there to join them in the common purpose of hunting salmon.238

196. Chief Harvey also explained in his affidavit why respecting whales also evidences respect for Tsawout:

They [the whales] are travelling around and looking for safety in the shipping lanes. Whales are such magnificent creatures and add so much to our enjoyment of our marine territory; they are so big and we really respect them. Respecting the whales is respecting us because we both rely on the salmon to survive. We have so many stories about orcas and whales in our traditions.239

(8) Archaeological Sites

197. Archaeological, heritage, and sacred sites cover Tsawout’s traditional marine territory, bearing witness to thousands of years of use and occupancy. 240 Known types of sites include Burial Cairns, canoe runs, clam gardens, cultural depressions, culturally modified tress, defensive sites, fish traps, lithic scatters, middens, pictographs and petroglyphs and wet sites (fish weirs, basketry, cordage).241

198. Claxton and Sam note that shell middens are everywhere: Nearly every bay and beach in W̱ SÁNEĆ Territory was a clamming site. Many of these were extensive and had been used for thousands of years. This is taught in their oral history, and we also know it from the kitchen middens that remain, full of clam shell fragments and other shell and bone remains of W̱ SÁNEĆ activities.242

199. A map of registered archaeological sites as of 2002, in relation to the LSA and the Shipping Lanes, is found on p. 37 of the Tsawout Marine Use Study.

238 Tsawout First Nation Marine Use Study (MUS) Part of 4, p. 116 239 Exhibit 355-15-2, Affidavit of Harvey Underwood (A4Q1D4), para. 29 240 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 37. 241 Exhibit C355-15-19, Tsawout First Nation Marine Use Study (MUS) Part 2 of 4 (A4Q1F7), p. 37. 242 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 130.

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H. Identified Project Impacts and Effects on Tsawout Treaty and Aboriginal Rights

200. Tsawout’s ability to exercise their Treaty and Aboriginal rights, including title, within W̱ SÁNEĆ Territory will be significantly infringed and impacted by the Project, both from day to day operations of the tankers and related vessels, and from accidents and malfunctions in the marine environment.243

201. As a result of conducting the MUS, engaging with the community and doing due diligence on the Project, Tsawout identified the following potential effects, impacts and infringements of the Project as follows:

(a) Disruption to Tsawout’s way of life, including increased alienation from and interruption with Tsawout’s sacred relationship and reliance on the waters and lands of their Territory, increased health effects and effects on physical, mental, emotional and spiritual wellbeing;

(b) Disturbance to food gathering locations, multiple use sites, and disruption to harvesting of marine resources, fishing, gathering of food and medicinal plants, hunting, and cultural and spiritual practices;

(c) Disturbance to distribution, health, abundance and long term sustainability of fish and aquatic resources, birds, mammals, vegetation, benthic communities, threatened and endangered species such as whales, and other resources;

(d) Disruption to marine ecosystems from increased wake, noise, air emissions, and lights;

(e) Disturbance to burial sites and other spiritual and cultural sites from increased vessel wake;

(f) Disruption to use of historic, modern and future marine travel ways and marine access throughout the Territory, including areas now considered within the United States;

(g) Decreased water quality and increased pollution from ballast water, including introduction of non-native invasive species;

243 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 24.

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(h) Increased risk of accidents and malfunctions, and oil spills - with associated effects, including: water contamination, shoreline contamination and physical contact between a tanker's hull and marine sub-tidal habitat from vessel grounding;

(i) Concerns regarding the adequacy, readiness and capacity of spill response along the Project tanker route;

(j) Appropriate mechanisms for avoidance, mitigation, and compensation for impacts to Tsawout; and liability and responsibility for damages and ecosystem recovery in case of accidents or malfunctions;

(k) Increased risk because of insufficient knowledge regarding the fate and behavior of diluted bitumen, and impacts to the preparedness and capacity to respond to a spill of diluted bitumen in the marine environment;

(l) Continued and increasing cumulative effects throughout the Territory, including contributing to climate change impacts, ecosystem effects, and carbon emissions; and

(m) Infringements of s. 35 Rights, including Tsawout’s Treaty right to carry on our fisheries as formerly.244

202. The CEAA evaluation criterion requires assessment of two components to determine risk: (i) the severity of an adverse impact; and (ii) the likelihood of an adverse impact occurring. We summarize evidence before the Board on each of these components below.

203. Below, we outline further details of some of the specific impacts of the Project on Tsawout’s section 35 rights, including their established treaty right to fish as formerly and the established treaty right to hunt.

244 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), paras.24-36; Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11671-11682.

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(1) Impacts and Effects from Marine Shipping Operations

(a) Effects of Vessel Wake

204. Tsawout is very concerned about vessel wake from increased vessel traffic from the Project, including impacts on the precious marine resources that Tsawout members rely upon for food, social and ceremonial purposes, impacts to fishing and gathering locations and habitat, as well as impacts to important cultural and burial sites. It is Tsawout’s position that existing impacts have already had too much impact on the marine ecosystems of the W̱ SÁNEĆ Territory. The direct and cumulative impacts of increased marine traffic associated with the Project will be significant. Trans Mountain has not provided adequate assessment of these impacts, including the cumulative impacts, and has not identified adequate measures to avoid or adequately mitigate these impacts and effects.

205. Various Tsawout fisherman and knowledge holders have described the existing impacts of vessel wake on marine species and on their marine harvesting. As noted above, areas within the LSA include large crab and other marine food harvesting areas starting from East Point, Saturna Island and continuing through the waters along the length of Taylor’s Beach. The east side of Sidney Island, Mandarte Island and surrounding reefs are harvesting areas exposed to the LSA.245 At these locations, harvesters recount that wake from existing shipping traffic already have a negative effect on harvesting. Vessel wake causes an otherwise clear sightline to become nothing but muddy, making the area impossible to harvest.246

206. Current impacts to harvesting at locations include: (a) reduction or removal of the visibility required for harvesting due to vessel wake disturbing the seafloor; (b) increased personal risk for travel and anchoring by small vessels; and (c) impacts to crabs during molting season from vessel wake. When crabs molt, they change their shells, and during this time they get disturbed and damaged by sudden changes in wave action. 247 One Tsawout superharvester observed: “you go there [to Taylor’s Beach] at zero tide I could show you.

245 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 76. 246 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 83. 247 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 76.

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Because of the vessel wake they don't have time to bury themselves in the sand and it’s just like a big windy day [under water].248

207. Furthermore, the eel grass beds at James Island and Sidney Island are being lost due to all the wake waves from vessel traffic. As noted by Marine Use Study Respondents, it is fairly shallow in those areas and the waves are building up the sediment. The eelgrass then disappears and it affects all the crabs and other spawning fish that depend upon it.249

208. Vessel wake also interrupts the traditional harvesting method of crab raking used by superharvesters and providers. Crab raking requires clean sightlines through clear water. Vessel wake causes clear water to become too murky to harvest. As one Provider describes “I see them ... I need to have clear water. Even a small speedboat will go by and it will get muddy.250

209. Vessel wake also impacts urchin harvesting. Tsawout interview respondents describe hooking urchins off of reefs close to shore using a rake, a process that is adversely affected by the wake of passing freighters. Respondents noted that the wake can take an hour to settle down, stating that:

When you are getting urchins they are right there on the drop off then you have to wait for the waves, the mud to slow down and start settling and start hooking away there. You get about 50 to 100 urchins and then you have to wait an hour just to get it.251

210. As well, Salish Strait Seafoods has developed certain locations within W̱ SÁNEĆ territory for geoduck harvesting and aquaculture. A prime geoduck site is within and adjacent to the LSA near Saturna Island. However, geoduck harvesting and aquaculture areas require certain substrates that are susceptible to disturbance from wave action.252

211. In addition to impacts to marine species and habitats, wake from increased tankers also directly impacts the safety, ability and effectiveness of harvesting itself. For example, in his sworn witness statement, Herb Pelkey described the impact of vessel wake from tankers

248 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 76. 249 Exhibit C355-15-15 -Tsawout First Nation Witness Statement Charles Underwood (A4Q1F0), para. 18, adopted into evidence in Exhibit C355-23-8 - Affidavit C. Underwood sworn Aug 19 2015 (A4S8E1), para. 2 250 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 73. 251 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 82. 252 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 109.

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on fishing and marine harvesting, which is based on his decades of fishing and harvesting in W̱ SÁNEĆ territory:

When the tankers go by, they create a large wake, even on a calm day. If I am close to an island, I will either go around the other side to avoid the wake, especially in my smaller boats, or I will head off for the beach. If a large vessel comes by, we will hide until it goes by. It is my experience that oftentimes, you have a fifteen minute window to get the fish in, especially in winter, when the weather gets rough and the fish move on. If a tanker or cargo ship comes by and creates a wake and you have to turn your boat to face into the wake or you have to pull your gear in, then you probably will miss the window for that fish on that day. The fish, at any time of year, move with the currents and the tides and relocate. Also, the fish go deeper when the large vessels go by so we cannot reach them with our gear. It can take a few hours for them to come back.253

212. Mr. Pelkey also noted the issue of vessel wake created by tugboats:

In my experience, tugboats also create a pretty big wake because of the way they plow through the water. The tugs are a risk for us because they create big waves for any boat under 20 feet.254

213. Another fisherman and Tsawout Knowledge Holder, Charles Underwood, also described in his sworn witness statement the following impacts of vessel wake from tankers and freighters when he is out fishing, as well as his concern about a further increase in this type of traffic. He stated:

You can feel the waves coming when a freighter or tanker is going by. What you have to do will depend on the size of your boat. If you have a smaller boat, you have to leave the area. If you have a bigger boat, you can face into the wake and wait it out. All the fish have their migration routes…I follow the salmon routes around Moresby Island, Pender Island and Saturna Island, as well as on our side of the line near Stuart Island. When a tanker or freighter is going by, you take a few minutes and put yourself into the wake. If I am too close to it, then if I have time, I will move it when I see these vessels. If it is windy and I have to turn into the wake, it interrupts my fishing for those moments. When I am fishing out on D'arcy Island, there can be a large vessel going by every 10 minutes, including tankers. That's a lot of boats, and I cannot imagine a bigger increase in the amount of marine traffic.255

253 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), para. 30, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 254 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), para. 33, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 255 Exhibit C355-15-15 -Tsawout First Nation Witness Statement Charles Underwood (A4Q1F0), paras. 16-17, 19, adopted into evidence in Exhibit C355-23-8 - Affidavit C. Underwood sworn Aug 19 2015 (A4S8E1), para. 2.

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214. Vessel wake also has a significant impact on burial and other cultural sites located throughout W̱ SÁNEĆ territory, including sites located at or near the water’s edge.256 Corey Joseph, a Tsawout gravedigger, noted the increase in ferries, ships and larger vessels now in Tsawout’s waters and the impacts on cultural and burial sites. He stated:

The wakes from all these different boats are pounding the banks of the islands, and the islets in our waters. This is eroding our burial grounds, which are located in various parts of our Territory, including on various Southern Gulf Islands. For example, once I was out in an area around Portland Island conducting monitoring work and during a period of three hours I watched the bank of one of the islets washing out in to the ocean due to all the wake that was being created from various vessels.257

215. Corey Joseph went on to describe the on the ground impact of such events:

What I have to do if I become aware of one of our burial sites being eroded, I have to gather the bones up and rebury them. It is hard to watch our ancestors being impacted this way. A lot of the time, Tsawout has to pay for these reburials ourselves because the big vessels, like BC Ferries, say they are not responsible for the wakes. Everyone says they are not responsible. When I go out to monitor and/or conduct reburials, I've used a 30 foot landing craft. We often have to stop the boat because of the wakes from large vessels, including tankers.258

216. Of particular concern is the burial sites that are on both sides of the tanker shipping lane. In some places, Mr. Joseph noted that wakes, together with the winter storms, erode several feet away every year.259 Aaron Sam shared this same concern, stating:

And, you know, I look at it every day and I’m out there … along the border there. And the freights, the wake is demolishing all the burial grounds that we have close to the water. And Saturna Island, Pender Island, it’s all places where my Elders all camped while they were doing their providing for themselves.260

(b) Other Impacts of increased vessel traffic

217. Tsawout is also concerned about effects of noise and vessel strikes on whales from increased vessel traffic in waters of W̱ SÁNEĆ territory, including those who are resident in

256 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 27. 257 Exhibit C355-15-17 -Tsawout First Nation Witness Statement Corey Joseph (A4Q1F3), para. 10, adopted into evidence in Exhibit C355-23-6 - Affidavit J. Corey sworn Aug 19 2015 (A4S8D9), para. 2. 258 Exhibit C355-15-17 -Tsawout First Nation Witness Statement Corey Joseph (A4Q1F3), paras. 11-12, adopted into evidence in Exhibit C355-23-6 - Affidavit J. Corey sworn Aug 19 2015 (A4S8D9), para. 2. 259 Exhibit C355-15-17 -Tsawout First Nation Witness Statement Corey Joseph (A4Q1F3), para. 13, adopted into evidence in Exhibit C355-23-6 - Affidavit J. Corey sworn Aug 19 2015 (A4S8D9), para. 2. 260 Transcript of Oral Evidence, November 28, 2014 (A4F4K9), line 11485.

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the waters as well as those that migrate through the area. From Tsawout’s perspective, the effects of underwater noise is a legitimate concern. As Herb Pelkey notes, when he is out on the waters he can really hear the tankers and other big cargo ships, particularly their propellers.261

218. Chief Harvey Underwood noted that increased underwater noise and increased potential from ship strikes on the southern resident orca population is of particular concern to Tsawout as this endangered species lives within W̱ SÁNEĆ territorial waters.262

219. Another potential impact of increased tanker traffic is on Tsawout fishing time and fishing gear. As noted by Herb Pelkey, when tankers and freighters come by, sometimes Tsawout fisherman have to pull fishing gear in. The effect of this is twofold: “it can mean your fishing day is over, depending on the time, because you've missed that window of where the fish are in relation to the currents and the tides” and can mean lost fishing gear.263

220. With respect to lost fishing gear due to tanker traffic, Tsawout members do not believe they will be appropriately compensated:

If we lose our gear, I do not think the company will do anything about it because they will blame it on the vessel or on us. The gear may not seem like a lot of money to them, but there goes my livelihood and the livelihood of other Tsawout members who fish, not to mention our food source, food for our Elders and ceremonies, our medicine. Are they really going to care about my $1500 fishing gear? They are likely to be more worried about the expense of their million dollar vessel.264

221. There is also the concern that increased tanker traffic will result in increased invasive species in W̱ SÁNEĆ territorial waters. As noted by one Tsawout knowledge holder and fisherman, “We do not know what is on the bottom of these boats. What happens if one of these species comes into the Bay or around the islands? Also, these vessels unload their

261 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), para. 28, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 262 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 28. 263 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), paras. 20-21, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 264 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), para. 36, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2.

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bilge water tanks in our waters and that stuff comes onto our shores. This is one of the reasons why our clams have been killed in Saanichton Bay.”265

(c) Loss of Access and Use to the Territory

222. Tsawout’s right to hunt and to carry on their fisheries as formerly will be directly impacted by the day to day operations of the Project vessels, in addition to any tanker accident or malfunction.266 In particular, loss of access due to increased tanker and associated vessel traffic is a major direct impact and infringement from the Marine Shipping Component of the Project on Tsawout’s established right to fish as formerly and their established hunting right.

223. Tsawout’s Marine Use Study describes in detail the harvesting routes and patterns of Tsawout members within the LSA and the RSA. Harvesters time and plan their routes around weather, tides, currents, and other vessel activities. Routes are chosen for familiarity and knowledge of rip tides, productivity and availability of resources, and with the limitations of equipment in mind. Many of Tsawout’s most active harvesters have specific seasonal routes that they rely on, almost by routine - travel routes that yield diverse harvests, and allow for “checking up on” productive locations.267

224. A map of the year round marine travel routes, and their locations in relation to the Marine Shipping Lanes for the Project, is set out in the Tsawout Marine Use Study.268

225. The impact of increased tanker and associated vessel traffic on travel routes was described by several knowledge holders and marine harvesters. Chief Harvey Underwood stated the following:

The traffic through our territory is already so busy that it is hard for our harvesters to find places and to stay safe. They currently have to dodge sport boats, ferries, tankers and ships. The amount of tanker traffic will only increase if the Project is approved. An increase in tanker traffic will impact the travelling that we do throughout the territory. For example, it will really interrupt our journeys in Haro Strait and by Saturna Island. This is one of Tsawout's main routes for getting around

265 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), para. 34, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 266 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 26. 267 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9), p. 115. 268 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 120.

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for fishing, gathering, hunting and for exercising our spiritual practices out on the waters and on the islands.269

226. Another harvester also noted the impact to harvesting from increased vessel traffic:

If you are heading out to South Pender or to Saturna for fishing, harvesting, hunting, or if you are going to go over toward the San Juan Islands near the border for trolling, sometimes you have to wait for the large vessels to go by and then cross over, because you would not want your motor to stop and be sitting too close in the water. It takes those vessels a long time to stop. In my experience, it takes a large vessel like a cargo ship or tanker 45 minutes to get from South Pender and south around Stuart Island. In that period, a whole fishing window is gone. If they increase the number of big vessels in our waters from this Project, along with all the existing large vessel traffic, I think it will impact our fishing times out on the water, just from the wakes and from waiting for them to pass by us. You have to remember, most Tsawout members are in pretty small boats - many of them 13 or 14 footers with small engines.270

227. In addition, the Marine Shipping Lane bisects the travel route to the crabbing destination at Stuart Island, and this will most likely make harvesting at this location both less accessible and less desirable.271

228. The loss of access to fishing and harvesting sites, and the associated loss of marine resources captured at these sites, due to increased vessel traffic have a number of inter- related impacts on Tsawout members. These include negative health and socio-economic impacts from the replacement of traditional marine foods with foods from the grocery store, which in turn affects the community’s well-being, happiness, and culture, and the ability to exercise Tsawout’s rights and identity.272

(2) Effects of Accidents and Malfunctions

229. Tsawout is very concerned about the likelihood of oil spills along the Project tanker route. Chief Harvey Underwood outlined the communities concern with respect to oil spills in his sworn evidence:

269 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 25. 270 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), paras. 31-32, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 271 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 76. 272 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 68; Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11591, 11671-11682, pdf pp. 43, 54-55.

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Our whole way of life will either be entirely lost or be put on the shelf. I wonder, then, how our life would come back to us. Depending on many things, including the size, location, timing and weather of a marine tanker spill, much of Tsawout's marine territory and way of life will be at risk.”273

230. There is concern about the impact of an oil spill near the Gulf Islands. Several Tsawout reserves are only one kilometre from the Marine Shipping Lane, and it was noted that the islands have so much sand, rock, inlets and crevasses, which, if oil got into these areas or onto the beaches, the impacts would be devastating to Tsawout.274

231. Tsawout is also concerned about the impacts of oil spills on various species within W̱ SÁNEĆ Territory, which impacts other species that Tsawout rely upon for traditional harvesting, including salmon, halibut, sea urchin, crabs, marine plants and birds. For example, if an oil spill were to lead to the loss of kelp, this would in turn impact sea urchins which eat the kelp.275 As Chief Underwood stated in his evidence, “Everything out in the waters has a purpose and if one thing is taken away or impacted, then other things are also impacted.”276

232. Tsawout also has concerns about the impacts of oil spills on marine birds, including the sawbill duck. As some Tsawout families are connected to the sawbill duck, as it is another clan, a loss of this species from oil spills would be a cultural and spiritual loss for that clan and for those families.277

233. Finally, Tsawout members highlighted how the impacts of an oil spill could devastate the work Tsawout is currently undertaking to revitalize marine habitats, species and harvesting techniques, as well as devastate the territory for future generations of Tsawout people. Corey Joseph described these impacts as follows:

If there was an oil spill, it would destroy everything, including everything we are trying to bring back through our reef net fishing, through our work on the eelgrass and at other sites. It is horrible to even think about an oil spill happening. How

273 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 32. 274 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 34. 275 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 33; See Transcript of Oral Evidence, November 28, 2014 (A4F4K9), lines 11458, Earl Claxton Jr.: “If there’s an oil spill, those eel grass beds are going to be coated with oil and they won’t any longer be a good home for the creatures that live there.” 276 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 33. 277 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 31.

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would we carry on as Coast Salish people without a coast? Our way of life would be dead.278

234. Herb Pelkey also spoke of his concern about the impacts of an oil spill on Tsawout’s revitalization of the reef-net fishery:

I am concerned about the increase in the number of tankers from this Project. With all those tankers coming, there will be more possibility of an oil spill. I think of what would happen if an oil spill happened and the oil got in here near our Bay and the islands, with the whirlpool currents. If an oil spill happens, what will we do for seafood if there is a spill? What will happen to the reef net fishing we are re- establishing after so many years if there is a spill? No one could carry that on.279

235. And Chief Harvey Underwood described how future generations would be impacted by a spill as well as other impacts from the Project, if it proceeds:

When I compare how our territory looks now and how it might look if this Project is approved, we have a lot to lose. As Chief, I want to see our people enjoy our territory, including our children and their children's children. If you take the beauty and remaining abundance of our territory away, for instance through day to day operational impacts on our fishing and gathering, and the devastating impacts from an oil spill or other accident, we will not be able to get that back.280

(3) Cumulative Effects

236. The cumulative effects of increased marine shipping as a result of the Project as well as other existing and upcoming projects, is of significant concern to Tsawout. In the Marine Use Study, cumulative effects were identified as a high priority for Tsawout harvesters who were interviewed. With regard to the Project, Tsawout’s concern is that they and the marine ecosystem of the W̱ SÁNEĆ Territory are at the tipping point in the state of the environment, beyond which their ability to exist as W̱ SÁNEĆ will be seriously and irreversibly undermined.281

237. Some of the various cumulative effects W̱ SÁNEĆ fishermen must navigate in order to exercise their right to fish as formerly include: declining salmon runs due to climate

278 Exhibit C355-15-17 -Tsawout First Nation Witness Statement Corey Joseph (A4Q1F3), para. 17, adopted into evidence in Exhibit C355-23-6 - Affidavit J. Corey sworn Aug 19 2015 (A4S8D9), para. 2. 279 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), paras. 37-38, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 280 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), para. 35. 281 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 144.

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change; pollution; overfishing; increasing competition from sports and non-native commercial fisheries; restrictions on gear types, and fishing spots and openings.282

238. Tsawout’s crab harvesters have also identified various cumulative effects that impact their subsistence crab fishery and the exercise of their right to fish as formerly, including: competition from commercial crabbers and casual non-Aboriginal harvesters; climate change; vessel wake; and invasive species.283

239. Tsawout Harvesters have noted the inter-related impacts of cumulative effects on various habitats and species. They observe that wherever eel grass habitats have disappeared, clams have followed, followed by crab populations in their turn. Harvesters noted that this process happened at James Island and Melanie Bay following recent dredging.284 When species start to disappear, then Tsawout harvesters must travel outward to find other harvesting sites. For example, finding clean beaches for clam harvesting means that individuals must travel outward toward areas closer to the shipping lanes such as Little D’Arcy Island and Sidney Island.285

240. Trans Mountain has not provided a reliable comprehensive cumulative effects assessment of increased vessel traffic along the Marine Shipping Route. Given the already existing impacts, effects and risks, it is impossible to assess, never mind avoid or mitigate, these cumulative effects.

241. Given the vulnerabilities of fish and aquatic resources within W̱ SÁNEĆ Territory, Tsawout’s ability to rely on the Territory is already at a tipping point. The increased number of vessels calling in at the Westridge Marine Terminal from approximately 60 tankers to per year to 408 tankers per year,286 which will travel through W̱ SÁNEĆ Territory as a result of the Project, will have significant effects on an already vulnerable marine environment.

242. It is Tsawout’s submission that the information before the Board in this proceeding confirms that all of the concerns raised by Tsawout members are valid and not adequately acknowledged or assessed by Trans Mountain. The evidence reviewed below confirms that

282 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 68. 283 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 75. 284 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 75. 285 Exhibit C355-15-20 - Tsawout First Nation Marine Use Study (MUS) Part 3 of 4 (A4Q1F8), p. 79. 286 Exhibit C355-4-3 TMEP TERMPOL Report December 11, 2014 (A4F8Z4), p. 1

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the probability of a terminal or tanker spill is very real and that adequate spill response is not in place.

(4) Diluted Bitumen in the Marine Environment

243. The increased likelihood and probable distribution of spilled oil in the marine environment, and the resulting exposure of precious marine ecosystems, including shorelines, marine mammals, birds, fish and aquatic resources, to diluted bitumen or its constituents is of great concern to Tsawout. Tsawout has not had adequate resources to fully study this concern and in this submission relies on the work completed by other Intervenors, including the report filed by Shxw’owhamel First Nation and Peters Band287

244. Tsawout submits that the information provided by Trans Mountain to assess the impact of spilled diluted bitumen within the marine environment in W̱ SÁNEĆ Territory is not adequate.

245. Spills of significant concern to Tsawout are those from both the Terminal and along the marine shipping route. Oil spilled in W̱ SÁNEĆ Territory could easily interact with the outflow of the Fraser River, including all the debris, and will also be impacted by the complex tidal action, wave heights and directions throughout the Territory. Tsawout is also very concerned that stranding of oil on the beaches of the W̱ SÁNEĆ Territory, including interacting with significant woody debris along those beaches, is extremely likely.

246. It is clear from the evidence that when oil is spilled, the process of weathering will begin, (more rapidly in the summer, and slower in the winter): With weathering, the residual oil contains a higher proportion of high molecular weight components (e.g. PAH with greater than 3 rings, waxes, resins, and asphaltenes) so that the viscosity and specific gravity of the residual oil would increase, with a greater potential to sink or be entrained in the water column. With high energy mixing (e.g. due to wave action, or turbulence), fresh, unweathered oil may be dispersed as droplets. Oil emulsions, oil slicks, and droplets can also mix with particles from the water or bed sediments, thus increasing the propensity to sink with increasing specific gravity or density, if the particles are sand or gravel.288

247. Although Trans Mountain’s approach is to downplay both the risk and the complexity of marine oil spills, reliable independent evidence presented in this hearing suggests

287 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (A4Q1A1); Exhibit C214-18-3 - Attachment B to written evidence of Living Oceans - Fate and Effect of Oil Spills - Dr. Short (A4L9R8). 288 Exhibit C312-8-3 - Collier Impacts of Freshwater or Marine Spill of Aquatic Resources Report (A4Q1A1), p. 13.

- 72 - otherwise. Although the entire report by Dr. Short is very important to show the inadequacy and unacceptability of Trans Mountain’s approach, we highlight these specific conclusions of Dr. Short: 27. A credible worst-case spill of 16,000 m3 of diluted bitumen would almost certainly lead to all of the oil contamination effects noted after the Nestuccca spill, but would be more intensive, more extensive, affect more species and habitats and would last much longer. A spill would likely cause heavy shoreline oiling on tens of kilometers of beaches, and less severe but still substantial oiling on hundreds of kilometers. .... The higher sea states typical of the more exposed waters along the Strait of Juan de Fuca and the west coast of Vancouver Island would promote entrainment of diluted bitumen into the water column, making the oil difficult to track. The resulting uncertainty of shoreline oil deposition would likely never be fully resolved owing to the expense involved in surveying the thousands of kilometers of potentially oiled shorelines.

28. A large discharge of diluted bitumen could kill seabirds in the hundreds of thousands no matter where the spill origin is located within the Salish Sea.

29. A large diluted bitumen spill anywhere along the tanker route through the Gulf Islands and the Strait of Juan de Fuca would almost certainly kill substantial numbers of marine mammals….

30. Spilled diluted bitumen can affect intertidal biota through three different modes of exposure: physical smothering, ingestion of dispersed oil droplets, and absorption of toxic compounds dissolved from oil into the water column. Absorption of toxic compounds dissolved from oil into the water column can cause death from narcosis, embryotoxicity to early life stages of fish, and photo-enhanced toxicity to translucent organisms. Accumulation of oil-derived compounds by organisms can taint tissues at very low concentrations (parts per trillion or less), rendering plants and animals collected during subsistence harvests unpalatable.

31. Early life stages of fish, especially of fish that spawn and pass through their initial developmental stages in the intertidal, are also vulnerable to embryotoxicity….

33. The sediment structure of armoured beaches is especially conducive to trapping and retraining diluted bitumen and other spilled petroleum….

36. Because of the susceptibility of diluted bitumen to submerge or sink, tracking the oil to shorelines would be especially problematic, creating persistent uncertainty regarding the extent and duration of oil contamination on shorelines….

37. The susceptibility of diluted bitumen to sink could temporarily suspend harvest of species such as Dungeness crabs, halibut, other groundfish and other species that support commercial and subsistence harvests. Seafloor oiling may further jeopardize subsistence harvests and commercial markets over longer terms if public

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perceptions and concerns regarding contamination become entrenched and widespread.

38. Fish, gelatinous zooplankton and other suspension feeding organisms are especially likely to accumulate submerged diluted bitumen droplets, leading to adverse effects on these organisms directly, or to their predators if they ingest these oil-contaminated organisms as prey. Although the direct effects of ingested oil on these organisms are poorly understood, they serve as important prey for some fish species including pink salmon.

49. Submerged diluted bitumen that is naturally dispersed in the upper water column presents a contamination hazard to fish, especially salmon, that are important for subsistence and commercial fishery harvests. In addition to ingestion of submerged diluted bitumen droplets by out-migrating juvenile salmon from the Fraser River or released from salmon hatcheries in Burrard Inlet during spring, diluted bitumen may be ingested by adult and sub-adult lifestages of salmon. [emphasis added]289

I. Gaps in the Assessment of Impacts and Effects

(1) Gaps in Trans Mountain’s Assessment of Project Impacts on Tsawout’s Traditional Marine Use

248. As part of Tsawout’s Marine Use Study, Dr. Peter Evans considered some of the gaps in Trans Mountain’s assessment of the potential impacts of the Project on Tsawout’s traditional harvesting, some of which relate to Trans Mountain’s failure to consider traditional marine use information specific to Tsawout in their assessment. We set out some of the identified gaps below.

(a) The Local Study Area

249. The accuracy of Trans Mountain’s effects assessment methodology is compromised by inconsistencies in the usage of the terms Local and Regional Study Areas. The LSA for TMRU runs from the Westridge Terminal, through Burrard Inlet, the southern part of Georgia Strait, through the southern Gulf Islands and Haro Strait, and through Juan de Fuca Strait to the 12-mile limit.290 As a result, the LSA does not include all the areas where Trans Mountain predicts direct effects will occur on Aboriginal harvesters and others. Without a defined LSA specific for TMRU, it is uncertain that Trans Mountain has examined marine use practices, preferences, and locations, the exercise of rights, or the host of related socio-

289 Exhibit C214-18-3 - Attachment B to written evidence of Living Oceans - Fate and effect of oil spills - Dr Short (A4L9R8), pp. 8-11. 290 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 128.

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economic factors that accompany them separate from effects on biophysical elements and processes. This is an important difference, because the direct primary effects on fish, for example, may manifest as entirely different effects on fishing (primary effect), or on fishers and their families (secondary effect).291

(b) Sacred Sites

250. Trans Mountain identifies the likelihood of ‘Disturbance of Sacred Sites’ within the LSA. It identifies the location of mitigation measures for air and noise in the application sections dealing with marine air emissions, marine GHG emissions, marine acoustic environment, and identifies continued engagement with affected communities as an additional measure.292 However, Trans Mountain did not include archaeological sites in its discussion of “sacred” sites. There is little discussion of archaeology in the application, and these effect pathways and mitigations have gone unstudied.

251. This is a significant gap as the Project’s increased marine shipping traffic is likely to affect archaeological, heritage, and sacred sites through: shoreline erosion due to vessel wake associated with increased marine traffic; oil contamination from accidents and malfunctions, either small or large; and impacts associated with cleanup measures following a spill,293 this is a significant gap.

(c) Indicator Species

252. There are also gaps in Trans Mountain’s use of indicator species in assessing Aboriginal interests and rights. For example, Trans Mountain has not modelled the Project-induced changes in waterfowl behaviour that may in turn alter the availability of, access to, and practices required to harvest Tsawout’s preferred species in their preferred locations. While the use of indicator species is standard practise for biophysical assessments, Aboriginal interests and rights assessments must examine effects on preferred species and locations. Although the surf scoter was used as an indicator species in the Application, the results are not reformulated for the TMRU assessment, despite the scoter’s function as a

291 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 128. 292 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 129. 293 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 130.

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sacred duck to Tsawout and other W̱ SÁNEĆ, preferred for ceremonial use during winter dance season, and for soup, and in the longhouse.294

253. A similar issue arises in the assessment of the effects on subsistence fishing activities. Trans Mountain identifies the following potential residual effects on subsistence fishing activities, post-mitigation: disruption of subsistence fishing activities; Alteration of subsistence resources; disruption of traditional marine resource user activities from Project-related marine vessel wake.295

254. However, Trans Mountain has not modelled the Project-induced changes in fish behaviour that may in turn alter the availability of, access to, and practices required to harvest Tsawout’s preferred species in their preferred locations. Nor have they modelled the Project-induced changes in behaviour that may in turn alter the availability of, access to, and practices required to harvest Tsawout’s preferred species of salmon, cod, halibut, other groundfish, and octopus in their preferred locations using preferred fishing methods. While the use of indicator species is standard practise for biophysical assessments, Aboriginal interests and rights assessments must examine effects on preferred species and locations.296

255. Trans Mountain has also not modelled the Project-induced changes in resources (urchin, seagulls, crabs, bivalves, chitons) that may in turn alter the availability of, access to, and practices required to harvest Tsawout’s preferred species in their preferred locations. Aboriginal interests and rights assessments must examine effects on preferred species and locations.297

(d) Access to Harvesting Sites

256. Access features prominently in Trans Mountain’s analysis of predicted effects on subsistence hunting, fishing, and plant gathering activities and includes potential changes in access to the resources and potential disturbance to the resource harvesters.298

294 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 131. 295 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9)Appendix, p. 132. 296 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 133. 297 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 136. 298 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 136.

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(e) Findings of Significance

257. Trans Mountain determined two findings of significance for the subsistence activities and sites aspect of the TMRU indicator, and three findings of “not significant.” It determined that the Project would have a “not significant” effect on the “alteration of traditional marine resource users’ vessel movement patterns,” the “disruption of traditional marine resource user activities from Project-related marine vessel wake,” and “disruption to subsistence activities.” Trans Mountain found that the Project is likely to have a significant effect on the “alteration of subsistence resources.” Trans Mountain further determined that the combined effects of “disruption to subsistence activities” (not significant) and “alteration of subsistence resources” will be significant.

258. However, a footnote to Table 4.3.10.4 indicates that “significant effects are only predicted to traditional marine resource use as it relates to southern resident killer whales.”299 These conclusions are completely unreliable as the assessment did not examine likely effects on all Tsawout’s food species and harvesting activities. In other words, those issues have simply not been assessed by Trans Mountain.300 An analysis of the effects and impacts on Tsawout’s ongoing use of the W̱ SÁNEĆ Territory should unquestionably result in a conclusion that Tsawout treaty rights and Aboriginal title and rights will suffer significant effects.

(f) Sensory Disturbance to Marine users

259. Trans Mountain characterizes “increased sensory disturbance for marine users” as negative impact balance, occurring within the LSA, of long-term duration, occurring periodically but reversible in the short-term, and of low magnitude. Their confidence in a “not significant” finding is high.301

260. However, this assessment was not based on Tsawout’s specific MUS information, and in fact is drawn from the marine commercial, recreational, tourism use (non-Aboriginal) section. This is an inappropriate comparison. The magnitude of this effect will be high for Tsawout. It will affect occasional marine users who may avoid the LSA or other areas where sensory

299 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 140. 300 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 141. 301 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 142.

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disturbances from Project-related traffic may be felt, or it may affect their ability or perceived ability to enjoy cultural sites and harvesting altogether.302

261. The Project bisects Tsawout’s traditional territory in two, rendering access to cultural sites on the other side of the shipping lanes, including important past and future reefnet fishery sites, more difficult if not impossible. In addition, as documented in the MUS, there are numerous high value places within or exposed to the LSA. Tsawout members’ ability to safely access those locations, feel connected to them, or enjoy them free of the perception of contamination will be affected. Tsawout relies on a small group of very active harvesters for a considerable portion of its traditional foods, much of which is gathered from areas of the Salish Sea that lie exposed to Project related traffic. In addition, Trans Mountain has not included the sensory disturbance from other marine vessels displaced from the LSA into other areas of Tsawout’s marine territory.303

262. The low magnitude Trans Mountain gave under the cultural sites indicator to “negative user perspectives of increased Project related marine vessel traffic” is in error and must be revised. Tsawout harvesters and community members have already developed negative perspectives on Trans Mountain’s proposed increase to tanker traffic, related to operations and spill safety. This effect will be permanent if the Project is approved, and its magnitude on the community’s ability to harvest marine resources will be high.304

263. Trans Mountain also concluded that the residual effects of the Project on traditional marine user activities from vessel wake would also be “not significant” under the cultural sites indicator. They characterized this impact as negative, occurring throughout the RSA over the long-term duration, with occasional frequency (we are never told how “occasional” differs from “periodic”), reversible in the short term, of low probability, but “low to medium” magnitude. Trans Mountain expresses moderate confidence in this prediction.305 Again, this assessment was not based on Tsawout’s specific information, and in fact is drawn from the marine commercial, recreational, tourism use (non-Aboriginal) section. The magnitude of this effect will be high for Tsawout. It will affect occasional marine users who may avoid the

302 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 142. 303 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 142. 304 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 142. 305 Exhibit B18-29 - V8A 4.2.12.2 TO T5.2.2 Marine Transportation Assessment - Trans Mountain’s Application (A3S4Y3), p. 376.

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LSA or other areas where vessel wake Project-related traffic may be felt, or it may affect their perception of the enjoyment of accessing cultural sites and harvesting altogether.306

264. Preferred deer hunting locations on the western and eastern sides of the Strait will become relatively inaccessible and/or dangerous with the increase in vessel traffic. Increased wake will affect both the safety and practise of harvesting while vessel traffic and wake will affect the aesthetic, visual, and sensory experiences of harvesting. The travel routes used to reach deer hunting locations may be affected by Project-induced vessel traffic and its effects. Trans Mountain has not explained whether the deer in these preferred areas will be affected by the Project.307

265. The cumulative effects section of Trans Mountain’s application examines cumulative effects on a number of marine mammal, bird, and fish species but as with the project-specific assessments, the range of preferred traditional species is not subjected to assessment. The cumulative effects analysis in Volume 8A of the application is inadequate. It regurgitates the findings of the individual assessments with modest derivation, despite significant predicted increases in vessel traffic described in Table 4.4.1.1. Trans Mountain determined that the potential cumulative effect on TMRU for subsistence activities and sites would be “significant,” but “not significant” for cumulative effects on cultural sites,308 despite finding that the magnitude of cumulative effects on cultural sites was “medium.”

266. When the information gathered by Tsawout in its Traditional Marine Use Study (MUS) is applied to Trans Mountain’s own methodology, the Project, should it proceed, would result in significant adverse effects on Tsawout’s traditional marine use and ability to exercise Douglas Treaty rights.309

267. Trans Mountain does not assess the possible effects of an oil spill—either large or small—on traditional marine use, or on Tsawout’s exercise of Douglas Treaty rights.310

306 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 142. 307 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix, p. 131. 308 Exhibit B18-29 - V8A 4.2.12.2 TO T5.2.2 Marine Transportation Assessment - Trans Mountain’s Application (A3S4Y3), p. 493. 309 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix 1:Review of Trans Mountain’s Project Effects Assessment, p. 127. 310 Exhibit C355-15-21 -Tsawout First Nation Marine Use Study (MUS) Part 4 of 4 (A4Q1F9) Appendix 1:Review of Trans Mountain’s Project Effects Assessment, p. 129.

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(2) Gaps in the Assessment of Vessel Wake on Burial Grounds

268. Despite the impacts of vessel wake described by Tsawout in their evidence, particularly to burial grounds, the Crown has not addressed these impacts to date. For example, Parks Canada has stated that although they have specialized knowledge on the preservation, protection and monitoring of archaeology sites in National Parks and Park Reserves,311 they have not provided this specialized advice as it relates to the Gulf Islands National Park Reserve to other Responsible Authorities, Intervenors, the NEB, or to the TRC. Parks Canada has also not assisted in the preparation of information requests relating to Trans Mountain in relation to the impact of vessel wake on burial grounds.

269. Parks Canada has stated that, in their view, the marine shipping components of the Project are best addressed through the mandates of Transport Canada and DFO.312 Further, when asked whether Parks Canada has any concerns about whether the marine shipping component of the Project may impact upon the proposed zoning of various places in the Gulf Island’s National Park, they again stated that marine shipping is best addressed through the mandates of Transport Canada and DFO.

270. However, Transport Canada stated in their written evidence that Transport Canada does not regulate vessel wakes, but that speed limits can be set by port authorities within their navigational boundaries and pilots can also use their discretion to manage wake.313 When asked which port, or other, authority could regulate vessel speeds in Boundary Pass and Haro Strait, Transport Canada replied that there is no port authority with jurisdiction over these areas. They went on to state that the management of vessel speeds would be left to the pilot who has conduct of the ship.314

271. When asked whether Transport Canada, or another Government of Canada agency with related authority such as the Coast Guard, currently provide information to vessel pilots about areas of cultural or ecological significance along the Marine Shipping Route, or provides related requests to reduce speeds, Transport Canada stated:

311 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), p. 64. 312 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), pp. 64-65. 313 C353-5-2 – Transport Canada’s Submission to the National Energy Board Review Panel (A4L7K1), p. 8, A-13. 314 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), p. 53.

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The Canadian Coast Guard’s Marine Communications and Traffic Services provides minimum wake requests based on an individual’s type of operation. First Nations could work with Canadian Coast Guard to discuss sensitivities and areas where a minimum wake may be required.315

272. Given this response, before this Project is approved, Tsawout (a) seeks confirmation that the Canadian Coast Guard will be consulting with Tsawout to discuss sensitive areas within WSANEC territory that require a minimum wake; (b) seeks a condition that minimum wakes will be established for tankers passing through Haro Strait and Boundary Pass and other areas within WSANEC territory on their way to and from the Westridge Terminal, after consultation and engagement between Tsawout and the Crown and any other relevant bodies.

(3) Gaps in the Assessment of an Oil Spill Risk

273. One of the gaps in Trans Mountain’s assessment of oil spill risk relates to the downplaying of risks of tankers navigating in various currents, weather and reefs within the Salish Sea. Tsawout knowledge holders have in-depth knowledge of some of the risks of navigation along the Marine Shipping Lanes and within the LSA, which has the potential to increase the risks of accidents and malfunctions.

274. For example, East Point near Saturna was identified as a bad area out by the marine reefs due to the currents and the tides. It was noted that the currents come from the north and east and turn at Boiling Reef, and that the current changes every day because there is a different tide every day and it depends on the wind and the weather.316

275. Tsawout knowledge holders also noted that it is rougher in winter out on the waters in W̱ SÁNEĆ territory, which encompasses the shipping lanes and the LSA. They stated that there are gale-force winds anywhere out in the open and the tides are certainly up higher in the waters in winter. At Race Rocks, it is much rougher in winter. There are reefs there

315 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), p. 54. 316 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), para. 13, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2.

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and it is shallower so it gets rougher.317 According to Tsawout knowledge holders, these same marine ocean conditions bring significant challenges for spills and effective clean up.

276. Because its members have consistently raised concerns regarding the impact of an oil spill from the Project, Tsawout commissioned an independent expert report to evaluate Trans Mountain`s oil spill risk assessments related to the Project, provide independent expert estimates of oil spill frequency risk, and estimate potential damage costs of an oil spill (“Spill Risk Report”).318

277. Dr. Gunton is a Professor and the Director of the Resource and Environmental Planning Program at Simon Fraser University. He has a Ph.D. in Planning from the University of British Columbia with specializations in natural resource policy, regional development planning, planning theory and public policy, and a Masters in Planning from University of Waterloo. He is a full tenured professor and has held the position of Professor and Director of the Resource and Environmental Planning Program at Simon Fraser University since 1980. This program is an interdisciplinary graduate program which includes in depth look at public policy issues, including economic, ecological and public interest decision making as applied to the management of natural resources. His research work includes regional development strategies and negotiation and collaborative models for resolving resource and environmental conflicts, including extensive work on Energy Projects, including the Alberta Oil Sands. Dr. Gunton has held senior positions in Provincial Government, in particular in B.C. and served as the Deputy Ministers to the Ministry of Finance, Ministry of Environment and to the Cabinet Policy Secretariat, and in Manitoba as the Assistant Deputy Minister of Energy and Mines. Part of his work for the Government of B.C. when deputy minister to the Cabinet Policy Secretariat, included working closely for 2 years with senior representatives within the Oil and Gas Industry in Alberta and B.C., including CAPP and other private sector organizations and government representatives to complete assessments and reach consensus on such things as the setting of B.C.’s royalties within the oil and gas markets, providing economic impacts and assessments and developing what was then the new B.C. Oil and Gas Commission and accompanying regulations. He has appeared as an expert witness before a number of administrative tribunals including the

317 Exhibit C355-15-16 -Tsawout First Nation Witness Statement Herb Pelkey (A4Q1F2), paras. 24-25, adopted into evidence in Exhibit C355-23-4 - Affidavit H. Pelkey sworn Aug 18 2015 (A4S8D7), para. 2. 318 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5).

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National Energy Board, the Ontario Energy Board, and the Manitoba Public Utilities Commission in which you have provided expert evidence regarding the analysis of the Oil and Energy Markets. 319

278. Dr. Broadbent completed both his doctorate and post-doctorate work with Dr. Gunton at Simon Fraser University, obtaining a Ph.D. in Resource Management in 2014. His doctoral thesis work focused on the Northern Gateway Project and included a thorough review of best practices for the evaluation of impact assessments for pipeline projects. 320

279. While Trans Mountain in Reply would like to debate whether the best practices used in the Spill Risk Report to critique Trans Mountains Application are international risk assessments, it is our submission that such criticism misses the critical point. The Spill Risk Report provides Tsawout, the Board and the Crown a useful set of criterion for evaluating Trans Mountain’s evidence related to the risks of spills. However, if the Board is concerned on that issue, we refer you to Dr. Broadbent’s doctoral thesis referenced in the report, which conducts a thorough review of international best practices and concludes that the ones used by Dr. Gunton and Dr. Broadbent are well accepted practices.

280. The authors of the Spill Risk Report conclude that Trans Mountain’s spill risk analysis does not meet the seven best practice criteria identified in the Spill Risk Report and found in total 27 major weaknesses in Trans Mountain`s risk analysis for tanker, terminal and pipeline spills. The Spill Risk Report provides a strong and relevant critique of the following sections of Trans Mountain’s Application:

 Volume 7: Risk Assessment and Management of Pipeline and Facility Spills and appendices;

 Risk Update that contains several attachments including the Failure Frequency Assessment Report, Trans Mountain Expansion Project Quantitative Geohazard Frequency Assessment, Line 2 Consequence Report, and Tabulated Risk Results for the Trans Mountain Expansion Project;

319 Exhibit C355-15-27 - Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pdf pp. 146-153. 320 Exhibit C355-15-27 - Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pdf pp. 154-156.

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 Termpol Study No. 3.15: General Risk Analysis and Intended Methods of Reducing Risk and appendices; and

 Trans Mountain Response to Information Requests regarding the TERMPOL Report and Outstanding Filings from National Energy Board.

281. The Spill Risk Report provides a useful summary of how the Application and subsequent filings by Trans Mountain did not provide the necessary information to enable an accurate assessment of the likelihood of adverse environmental effects resulting from oil spills from the Project.

282. The major weaknesses identified by Drs. Gunton and Broadbent demonstrate that a critical potential impact and effect of the Project - the potential for an oil spill - has not been adequately examined.

283. It is impossible, in our submission, to ignore the findings of Drs. Gunton and Broadbent. The authors are independent experts with no vested interest whatsoever in whether or not the Project proceeds or not. These experts used various public sources of data (from the National Energy Board, the Enbridge liquids pipeline system, the Pipeline and Hazardous Materials Safety Administration and the Project Application), put forward sensitivity analysis and applied well established methodology, including the United States Oil Spill Risk Analysis, to show that a tanker spill is highly likely to occur (58% to 98%).

284. Drs. Gunton and Broadbent used the Pipeline and Hazardous Materials Safety Administration methodology (United States Oil Spill Risk Analysis or OSRA) which has been the standard methodological approach used for estimating spill risk in the United States for decades. The OSRA model has been refined and tested in many applications, peer reviewed in journal publications and is the model used by the US Bureau of Ocean Energy Management to assess oil spill risk.321

285. Tanker spill risk probabilities based on the Application, the US Oil Spill Risk Analysis model and VTRA are summarized in Figure ES.2, p. iv.322

321 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 75. 322 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. iv.

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286. Trans Mountain’s own analysis shows the spill likelihood for the Project is high: pipeline is 99%; tanker is 16 - 67%; terminal is 77%; and all combined is 99%.323

287. The US Oil Spill Risk Analysis and the VTRA methodology estimate that there is a high likelihood of a tanker spill (58% to 98%).324

288. Using several widely accepted risk assessment methods, the authors show that the likelihood of spills is high. Data from the NEB, Enbridge liquids pipeline system, and the PHMSA methodology used in the US show that a tanker spill is highly likely.325 The spill risk estimates from the 3 different methodologies including the one used by Trans Mountain that shows a high likelihood of a tanker spill ranging from 58% to 98% over a 50 year operating period (one outlier of 16% in Trans Mountain’s analysis is inaccurate and unreliable).

289. Total potential tanker spill costs range from $2.2 to $4.4 billion for a single spill.326

290. The authors conclude that Trans Mountain has not put forward an Application that adequately assesses the significant adverse environmental effects as required by CEAA. Trans Mountain said that "Potential effects of credible worst case and smaller spills … are not evaluated for significance because these represent low probability, hypothetical events" (see para. 18, p. vii). However, the probability is high and therefore they should be assessed.

291. It is very concerning to Tsawout, and we submit it should also be for the Board and the Crown, that Trans Mountain did not use the United States Oil Spill Risk Analysis methodology to provide information on spill risk in their Application. Their failure to do so raises significant concerns regarding the bias and lack of reliability in the information Trans Mountain has put forward regarding spill risk. Trans Mountain’s Application materials contain major methodological weaknesses that result in unreliable assessments of the degree of risk associated with the Project.

323 Exhibit C355-15-27 - Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. viii. 324 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 130. 325 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pp. 67-87, 131. 326 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. v of Executive Summary and p. 123.

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292. In direct response to Drs. Gunton and Broadbent Spill Risk Report, Trans Mountain filed a Report prepared by Det Norske Veritas et al in its Reply Evidence (“Reply Report”).327

293. While the Reply Report makes numerous assumptions and raise numerous criticisms and rebuttals of the Drs. Gunton and Broadbent Spill Risk Report, Trans Mountain chose not to put any of these to Tsawout`s experts by way of Information Requests. As a result Drs. Gunton and Broadbent were not given an opportunity to clarify, correct, or address any of assumptions and assertions in the Reply evidence. Because Trans Mountain failed to test the evidence, the Board should put little weight on the critique and rebuttals that Trans Mountain raises in its Reply Evidence.

294. It is a well-established common law rule (stemming from the British case of Browne v. Dunn328) that before a party impeaches a witness’ evidence or tenders rebutting evidence, a party is expected to cross-examine the witness on the challenged statements. In Browne v. Dunn, Lord Halsbury stated:

To my mind nothing would be more absolutely unjust than not to cross-examine witnesses upon evidence which they have given, so as to give them notice, and to give them an opportunity of explanation, and an opportunity very often to defend their own character, and, not having given them such an opportunity, to ask the jury afterwards to disbelieve what they have said, although not one question has been directed either to their credit or to the accuracy of the facts they have deposed to.329

295. Given that the Board did not permit cross-examination in this hearing, the Board’s written Information Request process was the only tool available to test the evidence of other parties and the Board stated that the written IR process was meant to “provide a reasonable opportunity for testing” the evidence. Accordingly, in keeping with the rule in Browne v. Dunn, Trans Mountain should have used the written IR process to test the evidence that it would later seek to impugn through its Reply Evidence. Instead, Trans Mountain remained silent, did not challenge the evidence during the IR process and Drs. Gunton and Broadbent had no way of addressing or clarifying the challenged evidence.

327 Exhibit B418-6 - Reply Evidence-Attachment 1.07 Reply to Assessment of Oil Spills Risks TMEP (A4S7K4). 328 Browne v. Dunn (1893), 6 R. 67 (H.L.) (“Browne v. Dunn”). 329 Browne v. Dunn, at pp. 76-77; quoted with approval in Sam v. Canadian Pacific Ltd. et al [1975] B.C.J. No. 1157 (CA) (“Sam”) at para. 79.

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This was especially prejudicial given that the Board denied Tsawout leave to file sur-reply evidence to address the challenged issues.

296. In Ruling no. 96 where the Board denied Tsawout leave to file sur-reply evidence, the Board stated at p. 5:

It is Trans Mountain’s prerogative as to whether it wishes to ask IRs of an intervenor, just as it was intervenors’ prerogative during past IR rounds to test Trans Mountain’s evidence. If Trans Mountain misunderstands or misconstrues an intervenor’s evidence as a result … then it does so at its peril.

297. In this case, given that Drs. Gunton and Broadbent had no notice of the critiques in Trans Mountain’s Reply Evidence nor any opportunity to defend their evidence through the IR process or by submitting sur-reply evidence, it is submitted that the Board should give no weight to Trans Mountain’s Reply Evidence contesting the Spill Risk Report.330

298. In addition, Trans Mountain’s Reply Evidence is not an independent assessment of the potential for accidents and malfunctions. Their Application and Reply evidence are all reports that are completed relying heavily upon Trans Mountain’s in-house expertise. The potential for bias in such reports is obvious, and in many cases the report reads like a final argument as distinct from an independent assessment that provides clear assumptions, methodology, outcomes, sensitivity analysis and uncertainties.

299. Trans Mountain often asserts in its Application and Final Argument that the probability of a spill from the Project is low. A succinct summary of Trans Mountain’s assertion is as follows: With mitigation measures in place, Trans Mountain determined that the probability of a credible worst-case oil cargo spill from a Project tanker is forecast to have a potential return period of once in 2841 years. Therefore the combined risk mitigation effect of all measures is significant and the absolute risk of an oil cargo spill from a Project tanker is low.331

300. Trans Mountain states that the return period for a worst case spill is 2841 years and then concludes that the risk of a spill is low. The error in this assertion is that it assumes that because the risk of Trans Mountain’s worst case scenario is low, therefore the risk of all marine oil spills is low. In fact, as summarized above, Trans Mountain’s own evidence

330 Sam at paras. 78-80, Hide-Away Resort Ltd. v. Van Der Wal, 1999 CanLII 5646 (BC SC) at para. 77. 331 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 68.

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shows that the probability of spills are high: tanker spill ranges from 16 to 67% over a 50 year operating period, the probability of a pipeline spill is 99% and a terminal spill is 77%. Using a range of commonly used methods for estimating spill risks, the probability of a tanker spill ranges from 58 to 98%, pipeline spills are 99% and a terminal spill is 77%,332 again indicating that the probability of a spill is high. When nested within other analysis, Trans Mountain’s low range (16% estimate of a tanker spill) is clearly an outlier and should therefore not be given any weight due to the fact that it is an outlier and the methodology on which it is based has major deficiencies that make the estimate unreliable. It is, we submit, impossible for the Board to conclude that the probability of an oil spill is low. Rather, the precautionary approach applied to our current understanding, scientific and otherwise, requires that the Board assess the Project based on the fact that oil spills are likely.

301. Trans Mountain, in its Reply evidence and Final Argument, criticizes Drs. Gunton and Broadbent for not including results from the WSP study: “The authors of the Gunton and Broadbent Report failed to conduct a comparison of TMEP’s quantitative navigation risk assessment with the results of the WSP 2014 study”.333

302. In response, it is important to emphasize that the WSP report does not provide any estimates of the probability of a tanker spill risk from the Project that can be directly compared to Trans Mountain’s quantitative navigation risk assessment. However the WSP report does conclude that the risk from the Project is high. In Appendix 4 to the WSP Report, which is entitled Future Projects Assessment and includes the Project, it states that:

doubling the volume of oil passing through the Pacific sub-sector 5 would likely increase the spill risks to “very high” for all zones (nearshore, intermediate and deep-sea) for 10,000 m3 spill volume and greater).334

303. It is also important to note that the WSP report concludes that a spill as small as 62 barrels can cause significant adverse effects in the Vancouver/Victoria region.

304. Trans Mountain states in its Final Argument that:

332 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pp. viii-iv. 333 Exhibit BC118-6 Reply Evidence Attachment 1.07 Reply to Assessment of Oil Spill Risks TMEP (A457K4), p. 13 334 Exhibit C77-22-9 - Appendix 55 of City of Vancouver’s Written Evidence (A4L7L4), Appendix 4.

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Oil cargo spill risk in the region will remain similar to and comparable with current conditions. This fundamental conclusion from the Application has been reinforced by Trans Mountain’s subsequent refinements, based on the TERMPOL committee’s endorsements.335

305. This statement is inconsistent with the evidence submitted by Trans Mountain that confirms that the Project will increase the tanker oil spill risk significantly. As set out in Drs. Gunton and Broadbent Spill Risk Assessment Report and Trans Mountain’s Application, the spill return periods for any size tanker spill without the TMEP are between 310 and 613 years depending on mitigation measures.336 Trans Mountain’s evidence estimates that with the Project, return periods for any size tanker spill will be reduced to between 46 to 240 years (probability of between 16 and 67% over 50 years). This is a significant increase in the spill risk caused by the Project.

306. Other studies (VTRA 2010) also confirm that the Project will result in a significant increase in marine spill risk.337

307. It is Tsawout’s submission, that the issue is not whether a tanker spill will occur. Both Trans Mountain’s own evidence, and evidence produced by Tsawout and other Intervenors, confirms that the probability of a spill from a tanker is high.338

308. Rather, the issue the Proponent, the Crown, the Board, First Nations and stakeholders must grapple with is that, given the probability of a tanker spill, do we know what we need to know and are we adequately prepared to effectively respond to such an accident and malfunction? The Proponent creates significant distrust and concern by asserting that the likelihood of a spill is low, that diluted bitumen will float and will not permanently cause harm to the ecosystems. It is clear that much more needs to be done before this Project can be recommended.

309. It is very concerning that Trans Mountain has failed to acknowledge the import of the critique and potential outcomes of the Project as described by Drs. Gunton and Broadbent

335 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 68-69. 336 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 22-24. 337 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 86. 338 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. viii, 130-133.

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in their Spill Risk Report that there is a high probability of oil spills from the Project. Such failure puts into question all of Trans Mountain`s assertions that they can mitigate impacts and risks associated with the Project through post-Project assessment and mitigation plans. If a proponent consistently denies or undermines the potential risk of a project then it is difficult to reasonably conclude that the same proponent will take all the steps necessary to avoid and mitigate such risks.

310. For Tsawout, and in our submission the Board and the Federal Crown, Trans Mountain`s failure to acknowledge the high probability of spill risk, raises significant concerns regarding the reliability of the Application and Trans Mountain`s assertions that it will use industry standard mitigation measures. It is our submission that the Board cannot recommend a project with such a high risk of accidents and malfunctions, especially when the Proponent is in denial of those risks and promises that sometime in the future it will develop adequate mitigation plans to address the minimal risk it acknowledges.

(4) Gaps in the Assessment of Oil Spill Response

311. Given the significant concerns and potential for oil spills in W̱ SÁNEĆ Territory, and the conclusions of numerous reports regarding the state of (un)readiness339 to respond to such a spill, Tsawout retained an independent world renowned expert, Nuka Research and Planning Group LLC (Nuka) to examine the challenges, capability and limitations of mechanical oil spill response tactics and technologies to control oil spills from the Project.340

312. Elise DeCola, cofounder of Nuka Research and Planning Group, LLC (Nuka), is a world renowned expert in marine environmental policy and resource management. Nuka specializes in oil spill prevention and response, risk and vulnerability assessment, all- hazards planning and mitigation, and marine transportation and provides services to government, industry clients and First Nations. Of particular note, Mrs. DeCola provided expert testimony in the NEB Joint Board’s review of the Northern Gateway project. In 2013, Mrs. DeCola also completed a three volume study assessing the state of oil spill

339 For example, Exhibit C269-22-6 - A Review of Canada’s Ship-Source Oil Spill Preparedness and Response Regime (A4L7F7). 340 Exhibits C355-15-22 to C355-15-28 -Tsawout First Nation Expert Report. Oil Spill Response Analysis (A4Q1G0 to A4Q1G4); Exhibits C77-55-2 to C77-55-10 - Revised Nuka Report (Clean) (A4W1L4 to A4W1Q2).

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preparedness and response planning in coastal British Columbia. The study included an analysis of vessel traffic for all Canadian Pacific waters and international best practices review to identify the key elements of "world class" oil spill preparedness and response.341

313. When oil spills there will be impacts to environment, wildlife and human activities. Containing and recovering as much oil as possible can mitigate these impacts when it is done before the oil spreads too thin for recovery, reaches the shoreline, or submerges into the water column.342

314. The effectiveness of on-water oil spill response is influenced by many inter-related factors, including environmental factors, equipment availability and suitability, availability of trained personnel, accuracy of spill tracking and timing and effectiveness of countermeasure.343

315. Nuka presented 3 analyses:

(a) Marine oil spill response gap analysis - Nuka models the relevant environmental conditions, and evaluates frequency and duration of those conditions that would preclude recovery systems. Nuka provides estimates of the percentage of time during which environmental conditions such as wind, visibility and waves would prevent or limit response.

(b) Marine oil spill response capacity analysis - Nuka models the best case oil recovery for a series of spills at locations along the Project’s tanker route. The potential impacts of stranding oil and submerged or sunken oil to on-water recovery are discussed.

(c) Lower Fraser River oil spill response logistics analysis for between Port Mann Bridge and the mouth of the Fraser River.

341 Exhibit C355-15-26 -Tsawout First Nation Expert Report. Oil Spill Response Analysis Part 5 of 5 (A4Q1G4), pp. 135-137; Exhibit C77-55-9 - City of Vancouver Revised Evidence - Revised Nuka Report (Clean), Part 8 (A4W1Q1), pp. 135-137. 342 Exhibit C77-55-2 - Revised Nuka Report - Clean - Part 1 (A4W1L4), p. i. 343Exhibit C77-55-2 - Revised Nuka Report - Clean - Part 1 (A4W1L4), p. i.

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316. All three analyses consider capabilities and limits of mechanical oil spill response systems - primarily containment boom, skimming systems, pumps, hoses, and storage devises - to contain and recover oil that floats on the surface.

317. Table 1 (p. iv) and Figure 2 (p. v)344 shows the response gap estimates for five sites. Key findings are:

(a) There is no location along the Project’s marine route where on-water oil spill response is always possible.

(b) There may be times when on-water vessel operations is possible but poor visibility, including darkness, precludes aerial reconnaissance, makes it very difficult to track and target oil for recovery.

(c) During winter - response is not possible between 56% to 78% of the time at sites along the marine route.

(d) If a spill occurs during time when response is limited and if conditions extend for several days there may not be opportunity for on-water recover.

(e) Lack of response gap does not mean response will be effective.

318. Figure 3 (p. viii) summarizes response capacity estimates for summer and winter conditions at 5 sites along the route.345 A credible worst case spill of 16,000 m3 is modelled for 4 sites, 8,000 m3 spill is modelled for the Central Harbour. Figure 3 summarized the estimated percentage of the worst case oil spill that would be recovered in the first 72 hours of a response, which is likely an overestimate.

319. The highest estimates for cleanup are a summer spill in Central Harbour where the model shows 78% recovered, assuming oil floats and does not strand on nearby shorelines. Lowest modelled recovery are for winter spills at Georgia Strait and Haro Strait where the model estimates that only 15-16% would be recovered within 3 days, in other words, close to 2/3rds of spill volume would remain in the environment and not be recovered during a winter spill in W̱ SÁNEĆ Territory.

344Exhibit C77-55-2 - Revised Nuka Report - Clean - Part 1 (A4W1L4), pp. iv, v. 345 Exhibit C355-15-22 -Tsawout First Nation Expert Report. Oil Spill Response Analysis Part 1 of 5 (A4Q1G0), p. viii.

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320. It is important to note that the Nuka model assumes all improvements in spill response in the Project Application are put in place. Under current ability this recovery could be reduced by 58%.346

321. Tsawout stresses the following key findings of this independent expert report by Nuka related to oil spill response capabilities in the W̱ SÁNEĆ Territory:

(a) On-water spill recovery during winter months is reduced by as much as 50% compared to summer. (p. ix)

(b) If spill response is delayed for any reason - lags in detection, poor weather, equipment malfunction - total volume recovered would decrease significantly. For example, a 48 hour delay in Outer Harbour would result in over 11,000 of 16,000 m3 of oil left in environment.

(c) Because the model did not consider potential for shoreline stranding - total recovery at all sites may be overestimated. It must be noted that the Nuka models show stranding on beaches can be very significant.

(d) Spill response forces currently available in southern B.C. have capacity to recover only 10-20% of worst case oil spill under favourable conditions.

(e) Current response capacity is clustered in Vancouver Port area, reducing capacity for other sites along the marine shipping route of this Project.

(f) Night operations require double personnel and create significant safety risks.

(g) Changes to diluted bitumen (density and viscosity) within first few days may render oil spill response systems ineffective.347

322. Given the outflow of the Lower Fraser River into the Georgia Strait and onto W̱ SÁNEĆ Territory, the key findings of the Nuka report which must be stressed are as follows:

(a) If oil spill occurs at Port Mann Bridge and moves downriver at 8 kph or faster, there may not be time to mobilize and deploy equipment in time to control spill before it

346 Exhibit C355-15-22 -Tsawout First Nation Expert Report. Oil Spill Response Analysis Part 1 of 5 (A4Q1G0), p. ix. 347 Exhibit C355-15-22 -Tsawout First Nation Expert Report. Oil Spill Response Analysis Part 1 of 5 (A4Q1G0), p. ix.

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reaches Lower Fraser Delta. At transport speeds of 12 kph or higher it becomes impossible.

(b) Response equipment inventories are limited.

(c) Existing equipment is meant for floating oil, and would not be effective if diluted bitumen submerged or sank.

(d) It is unclear whether Trans Mountain has access to specialized oil spill response equipment, tactics and trained personnel necessary to control oil spills in fast water conditions; and

(e) Trans Mountain’s Application lacks critical detail about how responders will manage practical and logistical considerations.348

323. Common themes emerging from all three analysis completed by Nuka are:

(a) Timing is critical to oil spill response capabilities and limitations;

(b) Type, quantity and location of response equipment is critical; and

(c) Planning assumptions should be verified and information gaps filled.349

324. One of the gaps in Trans Mountain’s assessment of the risks of oil spills relates to their failure to take into account how the tides, currents and weather within the Salish Sea may impact the movement of oil throughout the marine waters and may impact the ability to clean up a spill. Tsawout knowledge holders discussed the complexity of the tides, weather and currents work within W̱ SÁNEĆ territorial waters, which encompasses a large portion of the marine shipping lane and the LSA.

325. For example, one knowledge holder noted that “he did not think that anyone could predict for sure how far a spill from a tanker would go, especially in different weather conditions and with our tides and currents.”350 For instance, the tides go back and forth in a system in W̱ SÁNEĆ territory, where there is constant movement and different water patterns. The

348 Exhibit C355-15-23 - Tsawout First Nation Expert Report. Oil Spill Response Analysis Part 2 of 5 (A4Q1G1), p. xii. 349 Exhibit C355-15-23 - Tsawout First Nation Expert Report. Oil Spill Response Analysis Part 2 of 5 (A4Q1G1) pp. xiii-xv. 350 Exhibit C355-15-15 -Tsawout First Nation Witness Statement Charles Underwood (A4Q1F0), para. 22, adopted into evidence in Exhibit C355-23-8 - Affidavit C. Underwood sworn Aug 19 2015 (A4S8E1), para. 2.

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tides come right from the Fraser River south through Haro Strait and that area towards Race Rocks and then go back. The ebb tide goes south and east, through the San Juan Islands and Boundary Pass. The flood tide goes in a northern direction back up through Saanichton Bay and through the Gulf Islands and this happens multiple times a day. 351

326. It was noted that the tides and currents can be pretty wicked. The fastest tides and currents come through Haro Strait and the reefs there, particularly on a flood tide.352

327. Another Tsawout fisherman and knowledge holder, Herb Pelkey, spoke about the currents in and around the islands of W̱ SÁNEĆ territorial waters:

Every island in our marine territory has a different current around it--each one. We rely on the kelp in each area to tell us what the currents are and which way the tide is coming in. For example, if the kelp beds are drifting south, it means the tide is going south. Then if the kelp is going north, then I know that the tide is coming in there as a flood tide. If we see kelp beds turning east, we will turn our boats and start coming back down. Where the currents are strong or the weather is bad, we also sometimes tie to kelp because it is stronger than an anchor.353

328. Another knowledge holder noted that there is a movement and swiftness to the water in W̱ SÁNEĆ territory. He asked “What will they do if an oil spill happens and it gets under the current? It would be pushed and pulled with the tides. How would you gather that oil up?”354

329. It is useful for the Board, when considering the concerns and knowledge raised by Tsawout’s knowledge holders and fishermen to also consider the conclusions reached by Genwest Systems Inc., in their Oil Spill Trajectory Modelling Report in Burrard Inlet (March 26, 2015).355

351 Exhibit C355-15-15 -Tsawout First Nation Witness Statement Charles Underwood (A4Q1F0), paras. 6-9, adopted into evidence in Exhibit C355-23-8 - Affidavit C. Underwood sworn Aug 19 2015 (A4S8E1), para. 2. 352 Exhibit C355-15-15 -Tsawout First Nation Witness Statement Charles Underwood (A4Q1F0), paras. 6-9, adopted into evidence in Exhibit C355-23-8 - Affidavit C. Underwood sworn Aug 19 2015 (A4S8E1), para. 2. 353 Exhibit C355-15-16 - Tsawout First Nation Witness Statement of Herb Pelkey (A4Q1F2), para 12, adopted into evidence in Exhibit H Pelkey sworn Aug. 18 2015 (A458D7), para. 2. 354 Exhibit C355-15-17 -Tsawout First Nation Witness Statement Corey Joseph (A4Q1F3), para. 15, adopted into evidence in Exhibit C355-23-6 - Affidavit J. Corey sworn Aug 19 2015 (A4S8D9), para. 2. 355 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5).

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330. These experts completed a peer review of oil spill modelling completed by Trans Mountain: and concluded that while Trans Mountain did a reasonable job of representing oil spill trajectory over most of Salish Sea, there were 2 significant shortcomings:

(a) did not allow for refloating/beached oil;356 and

(b) unrealistic modelling scenarios at Westridge Marine Terminal.357

331. The authors noted that heavily oiled shorelines tend to be rewashed, particularly by tidal action in areas of rocky shorelines or man-made structures. If so, beached oil becomes a secondary source for some number of tidal cycles.358

332. The authors used General National Oceanic and Atmospheric Administration (“NOAA”) - Operational Modelling Environment (“GNOME”) to model oil spill trajectories in Burrard Inlet. This model is well recognized and used all over world to model oil spill trajectories.359

333. The authors completed 2 Burrard Inlet Models and 1 Regional Model which includes currents from a simulation using the Salish Sea Model (from Western end of Strait of Juan de Fuca into Strait of Georgia).360

334. The authors used 4 oil spill scenarios: 2 sizes (8000 m3 - 16000 m3) and 4 locations (from Terminal to Outer Harbour) to conclude:

(a) Oil has potential to spread throughout Burrard Inlet, from Indian and Port Moody Arms to the Outer Harbour and beyond. Figure 11 of this report is important to W̱ SÁNEĆ Territory as it shows oil spilled at Second Narrows in Strait of Georgia in 24 hours and south into Salish Sea to Turn Point and beyond in 48 hours and 96 hours.361

356 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 1-2, 13-14. 357 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 1-2, 13-14. 358 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 13-14. 359 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), p. 16. 360 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 2, 18-20. 361 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 3-4.

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(b) Regional Model shows significant amounts of oil spilled in Outer Harbour can be transported away from Burrard Inlet into Strait of Georgia, south in Salish Sea to Turn Point and beyond (see Figure 19).362

(c) Oil spills in Outer Harbour are different than other locations and are influenced by Fraser River outflow and predominant current patterns in Strait of Georgia.363

(d) Winds and tides are the major drivers in oil movement in Burrard Inlet. Stranding, refloating and restranding oil is a cyclical aspect of predicting oil spill behaviour in the Burrard Inlet and Regional Models.364

335. All of these conclusions or findings from Genwest are consistent with the traditional knowledge held by Tsawout. The winds, tides and currents of W̱ SÁNEĆ Territory are a complex weaving of time, space and weather that will provide complex marine conditions which will move oil around in various directions and at various speeds depending on many possible conditions.

336. In is Reply Evidence, Trans Mountain filed a report in response to the Nuka Report (“Reply to Nuka Report”)365 that incorrectly makes various assumptions and critiques of the Nuka Report. For example, the Reply to Nuka Report incorrectly assumes that Nuka’s analysis did not consider wave lengths of certain height and steepness.366 The Reply to Nuka Report also provides opinion which is contrary to best practices and is inaccurate.367 Marine spill response capacity and effectiveness in W̱ SÁNEĆ Territory must consider a broad range of wave height and steepness. In addition it is unrealistic to suggest that swells in W̱ SÁNEĆ Territory do not impact spill response operations and that full night time recovery can be significantly relied upon.

337. The approach to response gap and response capability analysis used in the Nuka Report was originally developed by experts from spill response organizations, regulators and industry in Alaska, and further vetted through peer review by the National Academy of

362 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 5-6. 363 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), pp. 7, 61. 364 Exhibit C77-28-10 - Appendix 56 of Written Evidence of the City of Vancouver (A4L7L5), p. 7. 365 Exhibit B440-1 - Trans Mountain Pipeline ULC Revised Reply Evidence Based on Revisions to the Nuka Report (A4W3I6). 366 Exhibit C77-55-2 - Revised Nuka Report (Clean) - Part 1 (A4W1L4), p. xvi. 367 Exhibit B440-1 - Trans Mountain Pipeline ULC Revised Reply Evidence Based on Revisions to the Nuka Report (A4W3I6), p. 8, lines 36-37.

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Sciences. As reflected in Elise DeCola’s Curriculum Vitae (Appendix E to Nuka Report) and the brief description of the authors at page 3 of the Report, the methodology and analysis reflects decades of field experience and industry best practice recognizing the sea - primarily wave height and steepness - is a factor that limits and can preclude safe or effective clean up operations.

338. The Nuka Report applied industry best practice and decades of hands on experience assessing and improving marine oil spill response capabilities throughout the world. If Trans Mountain is seeking to meet a world class oil spill response standard, then it must turn to the assistance and wisdom of Elise DeCola and Nuka Research to help develop this. If the Proponent denies or discounts the challenges reflected in the Nuka Report that Proponent cannot be relied upon to promote or support the implementation of a world class oil spill response system.

339. It is our submission that the Board cannot recommend the Project when something as significant as emergency response planning for accidents and malfunctions along the tanker route has not been completed, or in some cases, to have even been started; particularly given the impacts and infringes the Project will have on the exercise of Tsawout’s constitutionally protected rights.

340. As the Board has acknowledged in Ruling No. 96, “[i]n administrative proceedings, the applicant bears the onus of providing evidence to establish its case.” In this case the applicant has the onus to establish that the “issuance of a certificate of public convenience and necessity authorizing the construction and operation of the Project” is warranted.

341. Moreover, in making its determination under section 52 of the NEBA and in determining whether the project will cause significant adverse environmental effects under CEAA, the Board must do so in keeping with the precautionary principle.368 As stated recently by the Federal Court:

The precautionary principle recognizes, that as a matter of sound public policy the lack of complete scientific certainty should not be used as a basis for avoiding or postponing measures to protect the environment, as there are inherent limits in being able to predict environmental harm. Moving from the realm of public policy to the law, the precautionary principle is at a minimum, an established aspect of

368 CEAA, s. 4(2)

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statutory interpretation, and arguably, has crystallized into a norm of customary international law and substantive domestic law…369

342. The precautionary principle thus puts the onus of proof on the applicant to demonstrate that a proposed project will not have significant adverse environmental effects rather than putting the onus on intervenors to demonstrate such effects.370 In keeping with the precautionary principle, CEAA has issued guidelines for the preparation of environmental impact statements that require the proponent to:

indicate how the precautionary principle was applied or considered in the assessment of the Project. In determining whether the Project is likely to cause significant adverse environmental effects, the Proponent shall:

demonstrate that all aspects of the Project have been examined and planned in a careful and precautionary manner in order to ensure that they do not cause serious or irreversible damage to the environment and/or the human health of current or future generations… [emphasis added]371

343. Having reviewed the evidence filed by Trans Mountain, together with Dr. Gunton’s and Dr. Broadbent’s Spill Risk Report and the Nuka Report, it is necessary for Tsawout, the Board and the Crown to proceed on the basis that there is a high likelihood of an oil spill of diluted bitumen from the Project along the Marine Shipping Route, and there are not adequate measures in place to address those risks. If a spill were to occur in W̱ SÁNEĆ Territory, or upstream of the Territory, the potential impacts on Tsawout’s s. 35 rights will be significant. Until the risks are fully acknowledged, understood and justified, including developing the necessary spill response, clean up, mitigation and compensation plans, it is not possible to recommend the Project.

369 Morton v Canada (Fisheries and Oceans), 2015 FC 575, at para. 43; see also 114957 Canada Ltée (Spraytech, Société d'arrosage) v. Hudson (Town), 2001 SCC 40. 370 “Chapter 3. The precautionary principle: a legal and policy history” by Andrew Jordan and Timothy O’Riordan from The precautionary principle: protecting public health, the environment and the future of our children, edited by Marco Martuzzi and Joel A. Tickner, World Health Organization - Europe, 2004, at p. 32, online at: http://www.euro.who.int/__data/assets/pdf_file/0003/91173/E83079.pdf. 371 Guidelines for the Preparation of an Environmental Impact Statement Pursuant to the Canadian Environmental Assessment Act for the New Prosperity Gold-Copper Mine Project, Canadian Environmental Assessment Agency, March 2012, online at: https://www.CEAA-acee.gc.ca/050/documents/54831/54831E.pdf; see also Guidelines for the Preparation of an Environmental Impact Statement Pursuant to the Canadian Environmental Assessment Act for the Cliffs Chromite Project, Canadian Environmental Assessment Agency, December 2011, online at: https://www.CEAA-acee.gc.ca/050/documents/53936/53936E.pdf.

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344. Applying the precautionary principle, the Board must conclude that the likelihood of a tanker spill is high, and Trans Mountain’s Application and subsequent filings cannot be relied upon to adequately assess the impacts, effects and risks of the Project.

345. Trans Mountain’s failure to accurately state or acknowledge the risks causes additional concern. The Proponent’s understating of the risks results in an atmosphere of distrust. The Proponent’s commitment to do necessary planning in the future once the Project is approved is also concerning, given that Trans Mountain is currently shipping conventional crude oils and diluted bitumen through the Territory.

(a) Potential Spill Clean Up and Damage Costs

346. Another concern raised by Tsawout is responsibility for and capacity to complete the immediate and long term clean up and damages associated with a spill. For example, there is great concern among Tsawout members about who would be truly liable for a spill or accident, and that there is no clear insurance or protection against harm Tsawout would incur in the event of an accident or spill. To date, no assurance has been provided to Tsawout regarding Trans Mountain or Kinder Morgan’s absolute liability for impacts to Tsawout and W̱ SÁNEĆ Territory in the event of accidents, malfunctions, monitoring of a spill, or for mitigation or compensation.

347. As set out in Dr. Gunton’s and Dr. Broadbent’s Spill Risk Report, Trans Mountain also underestimates the upper bound damage costs of a tanker spill. Total potential tanker spill costs range from $2.2 to $4.4 billion for a single spill, which is 1.7 to 4.7 times higher than the upper bound spill costs estimated in the Application.372 These costs do not include values for passive use values.

348. According to the Application, Trans Mountain Pipeline ULC currently maintains general liability insurance of $750 million per year and intends to maintain this level of insurance over the life of the Project. The Pipeline Safety Act, introduced by the Federal Government in 2013 as Bill C-46, requires pipeline companies to have $1 billion in clean up funds available to respond to spills.373

372 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5)., p. ix and p. 123. 373 Gunton/Broadbent Spill Risk Report, p. 124.

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349. While Trans Mountain`s insurance of $750 million could provide coverage for certain size spills, it would not cover a large pipeline rupture or credible mean to credible worst case size tanker spills. Given the potential life of the Project, it is not sufficient or responsible to rely upon the assets of Trans Mountain to ensure there is sufficient insurance coverage in the event of a spill. While the international and domestic compensation funds currently available for tanker and terminal spills would likely provide sufficient compensation in the event of smaller tanker spills, the compensation funds may be inadequate in the event of larger tanker spills.

350. Canada’s Federal Tanker Safety Expert Panel recommended that the limit of liability within the Ship-source Oil Pollution Fund should be removed.374 Trans Mountain must be required to take out sufficient insurance to ensure that a comprehensive mitigation and compensation plan is in place so that the Proponent is both fully responsible and fully able to complete all spill clean up and pay all reasonably foreseeable damage costs from a worst case tanker spill.

351. It is also important that Trans Mountain develop with Tsawout (and stakeholders) a comprehensive mitigation and compensation plan, together with a transparent compensation process that ensures that Tsawout is fully compensated for damages to them, their members and the Territory in the event of a spill.

352. There must be transparent capacity and processes in place to ensure adequate cleanup, monitoring, restoration and healing of the Territory and those resources within it that will be affected, as well as absolute liability for the Proponent to pay compensation to Tsawout members for damage to their Territory from an accident or malfunction from the Project.

353. In its Reply Evidence and its Final Argument, Trans Mountain criticise Drs. Gunton and Broadbent for using high costs for oil spills. The following provides the salient critiques:

The Gunton & Broadbent Report makes the most aggressive case for stating that compensation systems are inadequate. When the authors include items such as passive use values, their speculative spill costs “could increase up to $25.5 billion.” The Gunton & Broadbent estimates of costs and resulting conclusions regarding the adequacy of the compensation regimes are a flight of fantasy. The authors consistently select the highest multipliers or spill values in the literature, and ignore any assessment of whether it is reasonable or correct to transfer values from the

374 Gunton/Broadbent Spill Risk Report, p. 124.

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“selected case studies” (Kalamazoo in this instance) or literature values for damage multipliers. Interestingly, the authors accepted five key spill cost parameters from Etkin yet ignore her primary finding—that unit costs decline with volume spilled— that would have reduced estimated costs. It is inappropriate to manipulate the costs in such a manner. To compute tanker spill costs, they also incorrectly transfer values from the Wright Mansell Research Report (“WMR Report.1319”). They ignore the facts that the WMR Report used such values for a different purpose (CBA Cost Benefit Analysis sensitivity analyses), in a different context (greenfield circumstances), and for a different project (Northern Gateway). In drawing faulty inferences from the WMR Report, they ignored the one piece of peer-reviewed evidence that might have generated defensible costs as it provided regression estimates of spill costs based on International Oil Pollution Compensation Fund data. Had the authors considered the Kontovas regressions, their spill costs estimates would have been an order of magnitude lower and fallen well within currently available compensation limits under the Compensation Regime applied in Canada. Calculations in Trans Mountain’s reply to the Gunton & Broadbent Report demonstrate that, based on the Kontovas regressions, spill costs would be no more than $455 million for the very scenario Gunton & Broadbent described. For that same scenario, Gunton & Broadbent inferred a cost of $4.4 billion. As a consequence, their conclusions are neither realistic nor conservative and cannot be relied upon.375

354. We reply to this critique below.

355. Firstly, Trans Mountain says that Drs. Gunton and Broadbent incorrectly transfer tanker spill costs from the Wright Mansell Research Report and ignore that this report is not applicable because they relate to a greenfield project (Northern Gateway Pipeline) instead of an expansion project and that they are used in the context of a benefit cost analysis.

356. While Wright Mansell estimates are based on an extensive review of the literature, Drs. Gunton and Broadbent use only the base case value of $42,700 from Wright Mansell and not their upper bound of $85,200.376

357. The fact that the Wright Mansell work was presented in the context of a Cost Benefit Analysis for the Northern Gateway Pipeline does not make them irrelevant to an analysis of the Project. The Wright Mansell estimates are based on an extensive review of the literature on marine oil spills and are generic estimates that are not adjusted in any unique aspect of any specific project. They are just as useful when assessing this Project as the

375 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf pp. 427-428 (lines 7654- 7677). 376 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 108.

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Northern Gateway Project. The fact that the TMEP is an expansion of an existing pipeline has no effect on the costs of a marine tanker spill.

358. Secondly, Trans Mountain criticizes Drs. Gunton and Broadbent for not using Kontovas. This is inaccurate. Drs. Gunton and Broadbent provide an extensive review of Kontovas that includes Kontovas estimates.377 They also provide transparent and reasonable explanations for why they do not use these estimates in the damage costs presented in their Cost Benefit Analysis. Kontovas estimates are based on compensation payments from the IOPCF, which are not equivalent to actual damage costs. Some studies show that these payments are as low as 2% of actual damage costs.378 Therefore the Drs. Gunton and Broadbent felt that the Kontovas estimates were not reliable estimators of damage costs. It is also useful to note that Trans Mountain does not provide any estimate of tanker spill costs in its Application. Drs. Gunton and Broadbent provide a review and comparison of all relevant tanker cost estimates (including Kontovas) to provide a range of likely cost impacts.

359. Thirdly, Trans Mountain wants the Board to conclude that Drs. Gunton and Broadbent are always using the highest values for oil spill damage costs such as the Kalamazoo spill costs and the upper bound spill costs from Etkin. This is simply incorrect. Drs. Gunton and Broadbent provide a range of pipeline spill costs from a number of credible scenarios.379 Their analysis presents a range and establishes that the range provided by Trans Mountain is inaccurate. Trans Mountain states that it provides upper bound estimates provided by Etkin380 but does not. In Drs. Gunton and Broadbent’s analysis they use pipeline spill cost estimate in the mid-range ($15,000/b), which is well below upper bound estimates from places such as Etkin ($48,858). For tanker spill costs Drs. Gunton and Broadbent use the base case estimates from Wright Mansell’s work and only the base case Wright Mansell’s value of $42,700 (2014$) and not the Wright Mansell upper bound of $85,200 (Gunton, p. 55).

377 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pp. 106-113. 378 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pp. 106-107. 379 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 105, table 6.6. 380 Exhibit B18-14 - V7 App. G Cleanup Cost Potential Oil Spill (A3S4W8), Annex B pdf pp. 27-28.

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360. In response to the concerns raised by Drs. Gunton and Broadbent that there is inadequate insurance to cover spills, Trans Mountain states that a credible worst case pipeline spill would cost between $100-300million dollars and therefore that TM’s access to $750 million insurance provides sufficient compensation.381 Trans Mountain also notes that there is $1.44 billion of potential compensation available from various funds for a tanker spill.382

361. The analysis presented by Drs. Gunton and Broadbent show that Trans Mountain’s estimates of the upper bound cost of spills is inaccurate.383 Although TM states that they use the upper bound estimates from Etkin (see above) they do not. Based on upper bound cost estimates from Etkins , the cost of an pipeline rupture ranges between $379-$757 million and based on Enbridge’s actual line 6b spill, the costs could be as high as $1.5 billion.384 Although the likelihood of a rupture costing $1.5 billion is low, it is a credible worst case scenario. Other evidence by Goodman and Rowan (2014) estimate upper bound pipeline rupture costs between $2 and $5 billion.385

362. We note that If TM is correct in its assessment that a spill damage cost above $300 million is not a credible worst case scenario, the costs of increasing insurance from 750 to 1.5 billion will be minimal but so very important to ensure that there is sufficient compensation.

363. Because Trans Mountain provides no estimate of tanker spill damage costs, using their information it would be impossible to do any assessment whether the current compensation funds are adequate. Based on tanker spill costs estimates provided by Enbridge in the Norther Gateway Pipeline hearings, the cost of a worst case tanker spill would be $4.2 billion without inclusion of any passive use damages. If passive use damages are included, the costs would be much higher. Using industry’s own assessments, it is reasonable to conclude there could be a significant shortfall in the compensation available to cover the damage costs of a major tanker spill and additional compensation is required to cover the potential costs. Again, if Trans Mountain’s assertions that the likelihood of the

381 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 429. 382 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 81. 383 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pp. 121-122. 384 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), pp. v, 99-101 385 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 120.

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worst case tanker spill is low, the costs of providing this additional compensation insurance should also be low.

364. Finally, Trans Mountain criticizes Drs. Gunton and Broadbent use of passive use values. At its core, the criticism relies on Trans Mountain’s assertion that passive use values are incorrectly estimated because the Project is already applying the mitigation measures such as tug escorts used in the passive use estimates on which Drs. Gunton and Broadbent rely.

365. Drs. Gunton and Broadbent provide an estimate of a range of passive use values in both the spill risk analysis386 and their cost benefit analysis.387 While Trans Mountain acknowledges that passive use values exist,388 they do not include them in their analysis because they suggest there is no credible way to measure them. This is incorrect. Methods for estimating passive values are well developed and widely accepted.389

366. Trans Mountain’s allegation that the passive use estimates from Carson are not relevant to the Project because the Project will adopt mitigation measures is a misunderstanding of Carson, a misunderstanding of passive use values, and a misunderstanding of passive use methodology. The mitigation measures used in the Carson studies asked respondents how much they would be willing to pay to implement mitigation measures to prevent oil spill damages, not reduce the likelihood of spill damage. Thus while mitigation measures such as escort tugs and double-hull tankers are used in the survey to make the survey realistic, the underlying good that respondents are willing to pay for is prevention of spill damage, not the reduction in likelihood of spill damage. The fact that Trans Mountain may adopt similar mitigation measures for the Project may affect respondents’ perception of the risk and their willingness to pay (WTP) to reduce it, but it does not eliminate the risk, which is what respondents were asked in the Carson study. Consequently, Carson et al’s (2003) estimates are not invalidated simply because Trans Mountain may adopt similar mitigation measures similar to those used in the survey.

386 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 118. 387 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. 62-63. 388 Exhibit B18-14 - V7 App. G Cleanup Cost Potential Oil Spill (A3S4W8), pdf p. 6. 389 Exhibit C355-15-27 -Tsawout First Nation Expert Report. An Assessment of Spill Risk for the TMEP (A4Q1G5), p. 113-119; Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. 58-64

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J. CONCERNS RELATING TO TERMPOL

367. On December 11, 2014, the TRC delivered the TERMPOL Report outlining their findings and recommendations, based on the TRC’s review of the materials provided by Trans Mountain. Below we have listed some of the findings and recommendations that are relevant, and of concern, to Tsawout:

(a) Recommendation 8: Trans Mountain should develop a tug matrix identifying appropriate tug specifications for untethered tug escort of Project tankers for the Strait of Georgia in consultation with Pacific Pilotage Authority, BC Coast Pilots, and Transport Canada;390

(b) Recommendation 9: Trans Mountain should implement extended untethered escort for outbound laden Project tankers through the Juan de Fuca Strait;391

(c) Recommendation 11: Trans Mountain should provide input to the appropriate authorities for the development of an engagement and awareness strategy with respect to safety of navigation and prevention of collisions targeting recreational boaters, fishing vessel operators, and operators of small vessels;392

(d) Recommendation 17: Trans Mountain should submit its Oil Pollution Emergency Plan to Transport Canada for review at least six months before terminal operations begin;393

(e) Finding 5: As part of the Government of Canada’s actions to modernize Canada’s navigation system, the TRC supports a review of existing AIS carriage requirements by Transport Canada, in collaboration with the Canadian Coast Guard, to determine whether they should apply to a greater number of vessels;394

(f) Finding 8: Based on information provided by Trans Mountain on the size and type of Project tankers, and considering the existing regulatory framework, the TRC has not identified a need for additional regulatory instruments;395

390 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 57 391 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 58 392 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 58 393 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 58 394 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 59 395 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 59

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(g) Finding 12: Underkeel clearance requirements are met along the entirety of the route;396

(h) Finding 13: Because weather conditions along the route have never caused a pilot to abort a transit, it is the view of the TRC that weather related restrictions beyond existing requirements are not necessary at this time;397

(i) Finding 14: It is the TRC’s view that an additional ODAS buoy is not required in the southern Strait of Georgia to monitor weather and environmental conditions, as the area is already adequately monitored;398

(j) Finding 15: At this time, it is the TRC’s view that additional traffic control measures around the East Point area proposed by Trans Mountain are not necessary;399

(k) Finding 17: The TRC supports proposed enhancements to tug escort for outbound laden Project tankers in the Strait of Georgia;400

(l) Finding 18: The TRC supports extending the pilot disembarkation zone and tethered tug escort requirements for Project tankers to an area in the vicinity of Race Rocks, weather permitting and subject to the requirements identified in a Pacific Pilotage Authority “Notice to Industry”;401

(m) Finding 28: The TRC supports risk-based area response planning and WCMRC’s efforts to increase capacity and reduce response time to ensure it is prepared to respond to a credible worst case scenario as identified by Trans Mountain;402

(n) Finding 29: As part of measures to achieve a world-class tanker safety system, appropriate authorities will work with WCMRC and other stakeholders to develop and implement response plans tailored to the southern portion of BC. The plans will

396 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 60 397 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 60 398 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 60 399 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 60 400 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 60 401 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 60 402 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 61

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help to ensure the appropriate spill cleanup equipment is in place and readily available.403

368. Tsawout’s concerns with these findings and recommendations are as follows: a) in many cases, some of which we will discuss below, there is not adequate information for the TRC to make the findings and recommendations they have; b) the proposed findings and recommendations will not mitigate the impacts of increased vessel traffic travelling through WSANEC territory; c) in some cases, the recommendations will further impact the exercise of Tsawout’s fishing and hunting rights.

(1) Inadequate Consultation

369. Tsawout had requested to be part of the TRC on the basis that they are a governmental body having relevant knowledge to bring to the TERMPOL review. However, Tsawout’s request was denied by the Crown, as represented by Transport Canada, after significant delay and without any legitimate reason.404

370. Given that Tsawout was not allowed the opportunity to be part of the TRC, Tsawout had no opportunity to review, or provide their knowledge and input, into the assessments, findings and recommendations of the TRC. The denial of Tsawout’s request to be part of the TRC, without any legitimate basis, does not meet the honour of the Crown or evidence an intention of the Crown to consult meaningfully with Tsawout, as is required to meet the high standard of consultation required to justify an infringement to Tsawout’s established treaty rights.

371. Furthermore, through various information requests to both the Crown and Trans Mountain, Tsawout sought confirmation of opportunities for consultation and engagement on matters related to navigation and safety within their territory. For example, when Tsawout requested information about the scoping of the TERMPOL review through an Information Request, the Crown refused to provide that information, despite being ordered to do so by the Board. 405 Upon a further motion to compel a response, the Board

403 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf p. 61 404 Exhibit C355-15-2 - Tsawout First Nation Affidavit of Harvey Underwood (A4Q1D4), paras. 37-46; also Exhibits C355-15-7 to C355-15-14, A4Q1E0 to A4Q1E9. 405 Exhibit C355-17-4 - Tsawout First Nation IR to Transport Canada (A4Q8W7), pp. 9-11; Exhibit A200-3 - Appendix 1 to Ruling No. 85 (A4S1H2); Exhibit A218-1 - Ruling No. 93 (A4T7A8).

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allowed the Crown to change their answer, such that they no longer needed to respond. Such conduct does not meet the high standard of consultation required of the Crown, particularly when the provision of such information relates to potential impacts, and mitigation, of the Project upon established treaty rights.

372. Tsawout also sought opportunity to be engaged and consulted on the development of the Tug Escort Matrix, which was recommended by the TRC (see recommendation 8). In response to Tsawout’s question of whether Trans Mountain will include a Tsawout representative on the technical working group to develop the Tug Escort Matrix, given its relation to W̱ SÁNEĆ territory, Trans Mountain stated they were not contemplating expanding the membership of the technical working group.406 Tsawout asked Transport Canada if they would support the inclusion of Tsawout representatives on the technical working group for the development of the Tug Matrix and recommend to Trans Mountain that Tsawout be invited onto the technical working group.407 The Crown responded as follows:

Inclusion of other organizations in development of a tug matrix will be at the discretion of Trans Mountain. If Tsawout has an interest in participating in the development of a tug matrix, they should discuss the possibility with Trans Mountain Directly.408

373. Given these responses, Tsawout is being denied the opportunity to be included in a technical working group in the development of one of the recommended mitigation measures to prevent accidents and malfunctions, including oil spills, in W̱ SÁNEĆ territory. This is not meaningful consultation or accommodation of Tsawout’s rights and interests. In addition, denying Tsawout the opportunity to be included in the development of safety and navigation measures within their territory does not meet the Crown’s own stated measures for developing a “world-class tanker safety system” as was cited in TERMPOL Report, which calls for Aboriginal partnership and participation.409

406 Exhibit B367-2, Response to Tsawout First Nation TERMPOL IR Notice of Motion (A4K3X6), pdf p. 1; For the information request and initial response, see Exhibit B356-35, Trans Mountain Response to Tsawout FN TERMPOL IR (A4J7U2), pdf p. 2. 407 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), p. 31. 408 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), pp. 31-32. 409 Exhibit C353-4-3, TMEP TERMPOL Report December 11, 2014 (A4F8Z4), pdf pp. 51-52.

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(2) Gaps in Information in the TERMPOL Report

374. As well as the lack of consultation and engagement of Tsawout on development of the recommendations and findings of the TRC, Tsawout also identified gaps in TERMPOL Report which have yet to be addressed. Tsawout asked various government departments for further details of the proposed navigation and safety measures that were recommended in the TERMPOL Report. The responses revealed that some of the findings and recommendations are based on incomplete or misstated information. For example, Recommendation 3 in the TRC, which refers to the Coast Guard’s ongoing evaluation of proposed additional navigation aids, it states:

BC Coast Pilots are moving towards using receivers that use multiple global positioning satellite systems for navigation, which will enhance safe navigation of all large commercial vessels including tankers by pilots.410

375. In Finding 10, the TRC stated that it supported the BC Coast Pilots (BCCP) plan to use receivers that use multiple navigation systems, which will enhance safe navigation of tankers by pilots.411 However, when asked about the change to this system, the CCG stated that they have no knowledge of BCCP’s plans to adopt receivers with multiple Global Navigation Satellite Systems.412 This is despite the CCG being part of the TRC.

376. In another example, in relation to Finding 28 and 29, which discusses risk-based area response planning and measures to achieve a “world-class tanker safety system,” the TRC Report stated:

As part of Canada’s National Marine Oil Spill Preparedness and Response Regime, Transport Canada has put in place the National Places of Refuge Contingency Plan (TP 14707). The Plan establishes a national framework and approach which, with associated regional measures, aims to provide an effective and efficient response to requests from vessels in need of assistance seeking a place of refuge, including vessels at risk of discharging cargo. Transport Canada’s Pacific Regional Places of

410 Exhibit C353-4-3 – TERMPOL Review Process Report on the Trans Mountain Expansion Project, filed by Transport Canada on 11 December 2014, A4F8Z4, p. 19. 411 Exhibit C353-4-3 – TERMPOL Review Process Report on the Trans Mountain Expansion Project, filed by Transport Canada on 11 December 2014, A4F8Z4, p. 19. 412 Exhibit C249-13-14 NRCan on behalf of the Government of Canada Response to Tsawout First Nation IRs (A4R4A6), p. 57.

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Refuge Contingency Plan complements the national plan by establishing a regional framework to respond to requests for assistance within the region.413

377. However, when Trans Mountain was asked whether they applied Transport Canada’s Pacific Regional Places of Refuge Contingency Plan (“Contingency Plan”) in their analysis oil spill preparedness and response plans, Trans Mountain stated that it was not applied, and further stated that Project-related tankers, which are modern, high standard vessels, accompanied by escort tugs throughout their laden transit through Canadian waters are unlikely to require a place of refuge.414

378. If the Contingency Plan is irrelevant for Project related vessels, or was not applied as part of oil spill preparedness and response plans, it is not clear why it would be referenced in the TRC report as it was.

379. These are but a few examples of the gaps related to information in the TRC Report, which are of serious concern to Tsawout, particularly given that Trans Mountain has adopted the findings and recommendations of the TRC, and the findings and recommendations are being relied upon as mitigation in relation to the impacts and effects of the Marine Shipping Component of the Project.

K. Necessity of the Project: Public Interest and Economic Feasibility of the Project

380. The Board is required to consider all of the evidence placed on the record and submit a recommendation to the federal government on whether or not a Certificate of Public Necessity and Convenience should be issued for the Project. In doing so, the Board is required under section 52(2) to make a recommendation having regard to all considerations to be directly related to the pipeline and to be relevant. As previously mentioned, the factors that the NEB may consider in making its recommendation under s. 52(2) of the NEB includes:

(a) the availability of oil, gas or any other commodity to the pipeline;

(b) the existence of markets, actual or potential;

413 Exhibit C353-4-3 – TERMPOL Review Process Report on the Trans Mountain Expansion Project, filed by Transport Canada on 11 December 2014, A4F8Z4, pp. 39-40. 414 Exhibit B367-2-Response to Tsawout FN TERMPOL IR Notice of Motion (A4K3X6), p. 4.

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(c) the economic feasibility of the pipeline;

(d) the financial responsibility and financial structure of the applicant, the methods of financing the pipeline and the extent to which Canadians will have an opportunity to participate in the financing, engineering and construction of the pipeline; and

(e) any public interest that in the Board's opinion may be affected by the issuance of the certificate or the dismissal of the application. [emphasis added]

381. In other words, the Board must consider whether the Project is economically feasible and whether Canada and Canadians would be better off, or worse off, if the Project is built and operated.

382. The Joint Review Panel for the Northern Gateway Project described the consideration of public interest in the following terms:

In the Panel’s view, the public interest is inclusive of all Canadians, locally, regionally, and nationally, and refers to the integration of environmental, societal, and economic considerations. A determination in the public interest is based on findings of fact and a review of scientific and technical information. When applying the “present and future public convenience and necessity” test under Part III of the National Energy Board Act the Panel must consider the overall “public interest.” The National Energy Board Act requires the Panel to consider any public interest that may be affected by granting or refusing the application. The Panel considers the burdens the project could place on Canadians, and the benefits the project could bring to Canadians. In making its recommendation, the Panel assesses all the evidence on the record, including: the proposed engineering design and safety of the facilities; the economics of the proposed project including supply, demand, and access to the facilities; the effect the proposed project would have on the environment, as well as the effect the environment would have on the project; and the effect the proposed project would have on individuals, Aboriginal and non- Aboriginal groups, communities, and society.415

383. Moreover, what is in the public interest can change over time. There are no firm criteria for applying the public interest standard. The Board estimates the overall public good a

415 The National Energy Board of Canada, Connections: Report of the Joint Review Panel for the Enbridge Northern Gateway Project Volume 2, online: National Energy Board at page 8.

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project may create and its potential negative aspects, weighs its various impacts, and makes determinations on what it will recommend.416

(1) Economic Feasibility of the Project

384. It is abundantly clear from its Application and Final Submissions, that Trans Mountain is relying primarily on the economic benefits of the Project to oil and gas producers to satisfy the public interest requirements.

385. In its final written argument, Trans Mountain describes the Project as a “market response to address the inadequate transportation capacity, and current lack of diversified market access and optionality for Canadian oil production, which has resulted in extraordinary price discounts for that production.”417 Trans Mountain also asserts that the Project’s increased market access for Canadian production of crude oil will result in significant economic benefits to Canada and its regions, largely relying upon the theory that there will be approximately $73.5 billion expected in higher netbacks to oil producers attributable to the market access opportunity provided by the Project.418

386. In addition, Trans Mountain relies heavily upon their long term contracts with these oil and gas producers to indicate that oil and gas producers need this expanded pipeline. However, if that was all that was needed to meet the public interest, then there would be no need for the Board to do the complex assessment of public convenience and necessity. The private interests of pipeline companies and the oil and gas producers who they service cannot be equated with the public interest of Canadians.

387. Tsawout has identified a number of concerns regarding Trans Mountain’s theories regarding the economic benefits of this Project and whether such benefits can be relied upon to establish that the Project is in the public interest, given the risks associated with the Project. Since there is no evidence that Canadians require the transportation of diluted bitumen that will be carried by the Project pipeline for their own use and benefit, or that

416 NEB Reasons for Decision - Emera Brunswick Pipeline Company Ltd. - GH-1-2006 (A15654), 93-94. 417 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), lines 387-389. 418 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), p. 28; in support of these assertions, Trans Mountain relies upon Exhibit B431-1 (Muse Stancil Report dated October 28, 2015) and Exhibit B427-4-3a (Conference Board of Canada Report September 21, 2015).

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the royalties, manufacturing and employment benefits would be substantial, the public interest need for the Project is not apparent.

388. Tsawout retained independent experts to provide an assessment of the risks and benefits of the Project, as well as the economic feasibility of the Project, given the problematic analysis of the economic feasibility of the Project in Trans Mountain’s application and evidence, and the overstatement of benefits of the Project in Trans Mountain’s evidence. Dr. Gunton et al prepared a report entitled Public Interest Evaluation of the Trans Mountain Expansion Project, in order to assist Tsawout with their own understanding and due diligence review of the Project, assist the Board in its determination of whether to recommend that a section 52 Certificate be issued for the Project, and to inform Crown consultation between Tsawout and the Crown related to the Project.

389. After the Kelly Evidence was removed from the record and the subsequent filing of new expert reports by Trans Mountain, Tsawout commissioned the completion of a second report by Dr. Gunton et al to consider and assess Trans Mountain’s revised theory on the benefits of the Project.419

390. After doing a thorough analysis of Trans Mountain’s Application and the newly filed reports, Dr. Gunton et al conclude:

(a) Trans Mountain overstates project benefits by using gross economic impacts as the primary measure for the contribution of the project to the public interest instead of net impacts and net economic benefits;420

(b) Trans Mountain incorrectly assumes that economic impacts are a measure of benefits without taking into account the opportunity cost of the labour, capital and other resources it uses;421

(c) Trans Mountain’s conclusion that the Project will generate significant benefits in the form of increased prices for Canadian oil exports is based in questionable

419 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9). 420 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. I, 20-21. 421 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. I, 25-26.

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methodology, unrealistic assumptions and is inconsistent with oil market dynamics;422 and

(d) Trans Mountain’s assessment of the need for the Project is deficient because it underestimates WCSB transportation capacity, likely overestimates oil production and oil prices, and does not include alternative production and transportation capacity scenarios.423

391. A significant concern to Dr. Gunton et al, which goes directly to the Board’s assessment of the Project, is that Trans Mountain, and its experts, provide no estimates of the economic losses resulting from the Project, including the potential excess transportation capacity that the Project may cause, and no estimates of social and environmental costs of air pollution, greenhouse gas (GHG) emissions, oil spills and other environmental and social impacts resulting from the Project.424

392. It is fundamental to any Board recommendation related to the Project, and to any Tsawout and Crown consultation related to the Project, that both the realistic benefits and the likely costs of the Project be compared. Without providing both realistic benefits and likely costs, the information necessary for determining whether the Project is needed and in the public interest is not available.

393. Given the risks associated with the marine components of the Project, including the cumulative impacts on Tsawout, it is vital that Tsawout, the Board and the Crown have a reliable assessment of the need for the Project. The fact that Trans Mountain has signed long term firm transportation contracts of 15 and 20 years with 13 shippers reached during a very different economic and political reality in Canada, is not sufficient to determine the Project is needed. Given these long term transportation contracts, Trans Mountain might need to pursue this Project. That does not mean that Canadians need the Project.

422 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. I, 8-20. 423 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. I, 9-10, 43-45. 424 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. i-ii.

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394. Since the signing of these long term transportation contracts, a number of significant changes have occurred that must be considered by the Board when considering whether this Project is in the public interest, including:

(a) the economic downturn in oil and gas industry globally, and for Alberta oil sands producers;425

(b) the SCC confirms Tsilhqot’in Aboriginal Title, and the role of consent going forward;426

(c) the Canadian government has made significant international commitments to reduce GHG emissions significantly, which will include significant curtailing of Alberta oil sands production;

(d) the Canadian government’s commitment to acknowledge and work to reduce the impacts and effects of climate change;427 and

(e) the Canadian government’s commitment to respect Aboriginal title and rights, including the implementation of UNDRIP.428

395. Given these changes, it is simply not credible to say that because of the long term shipper contracts, the Project is needed and in the public interest.

396. To help decision makers assess the need for the Project, Dr. Gunton et al completed a supply and demand analysis for WCSB transportation services using forecasts from the Canadian Association of Petroleum Producers (CAPP). The analysis shows that construction

425 “Canadian crude — the world’s cheapest oil — falls to record low as slump deepens”, by Rebecca Penty and Robert Tuttle, Financial Post, January 6, 2016, online at: http://business.financialpost.com/news/energy/canadian-crude-the-worlds-cheapest-oil-falls-to-record-low-as- slump-deepens?__lsa=2b5d-4db1. 426 Tsilqot’in, para. 97. 427 Statement by the Prime Minister of Canada on successful conclusion of Paris Climate Conference, Rt. Hon. Justin Trudeau, P.C., M.P., December 12, 2015, online at: http://pm.gc.ca/eng/news/2015/12/12/statement-prime- minister-canada-successful-conclusion-paris-climate-conference. 428 Minister of Indigenous and Northern Affairs Mandate Letter, Rt. Hon. Justin Trudeau, P.C., M.P., November 2015, online at: http://pm.gc.ca/eng/minister-indigenous-and-northern-affairs-mandate-letter; see also Speech from the Throne to Open the First Session of the Forty-second Parliament of Canada, December 4, 2015, online at: http://www.speech.gc.ca/en/content/making-real-change-happen.

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of the Project will contribute to the creation of surplus capacity in the oil transportation sector.429 In particular, the authors conclude that:

(a) Under CAPP’s high growth forecast, construction of currently planned projects (Enbridge Clipper, Enbridge Line 3 replacement, Trans Mountain Expansion Project, and Energy East but excluding Keystone XL and Northern Gateway) will result in surplus transportation capacity of 1.6 million bpd in 2020 and there is surplus capacity until about 2034. The surplus capacity in 2020 is equivalent to just over three Northern Gateway’s worth of empty pipeline space.

(b) Under CAPP’s low growth forecast there is surplus capacity to the end of the forecast period (2047).

(c) If Enbridge Clipper, Enbridge Line 3 replacement, and Energy East are built, the Project is not required until 2029 under CAPP’s high growth forecast and is not required at all under CAPP’s low growth forecast. If Energy East is not built, the Project is not required until 2023 under CAPP’s high growth forecast and is not required at all under CAPP’s low growth forecast.

(d) Although some unused capacity is necessary and beneficial, the magnitude of unused capacity resulting from premature construction of the Project would impose a large cost on Canada’s oil transportation sector, oil producers and the Canadian public in the form of reduced tax revenues. Trans Mountain has not included the costs of this unused capacity in its evaluation of the Project costs and benefits.430

397. Following their assessment of the need for the Project, these experts also completed a benefit cost analysis and tested a range of scenarios and assumptions to address uncertainty in project parameters and impacts. It is important to stress that this type of rigour, including an uncertainty analysis is not found in either the Muse Stancil or the Conference Board of Canada’s analysis (Trans Mountain’s expert reports).

429 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), Figure ES-1 at p. iii of the Executive Summary. 430 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. i-v, 29-31, 43, 68-72.

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398. Of significant concern to Tsawout, and directly relevant to the Board’s assessment of the need for the Project, including whether it is in the public interest, is that Dr. Gunton et al provide a transparent assessment of potential benefits and costs of the Project that concludes, under base case assumptions, the Project being a net cost to Canada of $7.4 Billion. The authors recognize that based on different scenarios and assumptions, which they set out in the report, the net costs could range between $4.6 and $23.0 billion.431

399. How can these experts have such different views on the Project? The principal difference is that the expert reports submitted by Trans Mountain provide only an estimate of benefits while omitting any estimate of costs, while Drs. Gunton et al. include both benefits and costs in its assessment consistent with the NEB’s definition of the public interest determination. And given these differences what should the Board conclude?

400. It remains Tsawout’s strong submission that differences such as those reflected in these different expert reports should have been the subject of cross examination, and as a minimum, the Proponent ought to have aggressively used the Information Request process to test the assumptions, methodology and conclusions of the Dr. Gunton et al Public Interest Report. For the reasons set out in paragraphs 291 to 297 above, Trans Mountain cannot simply fail to ask any Information Requests and then in final submissions make numerous attacks on these experts’ evidence. Their failure to test the evidence is at their peril. Because Trans Mountain failed to test those experts’ evidence, no weight should be given to their Reply Evidence.

401. As set out in the Dr. Gunton et al Public Interest Report, one of the primary reasons that the Project may result in such large net costs to Canada is that building the Project under the proposed schedule will create excess pipeline capacity. Said another way, the Dr. Gunton et al analysis shows that given the changes in the Industry, there are currently more WCSB oil transportation projects planned than required. Because all of these pipeline projects were proposed before the current downturn in the oil markets, projects like the Project that secured long term shipping contracts will externalize the costs of surplus capacity onto existing transportation systems, oil producers and governments.

431 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. iii, 67-68.

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402. As set out by Dr. Gunton et al, another reason that the Project may result in such large net costs is due to the environmental risks involved, which could be avoided if other existing and proposed transportation options are used.432

403. An additional concern for Tsawout is that if this Project is approved without their consent, they will receive no direct benefits from this Project and significant impacts, effects and, given the long term shipping contracts, will bear the risks associated with the Project, even though the Project is not needed to meet current and foreseeable shipping requirements.

404. In this section of our submissions we respond to numerous incorrect assumptions and incorrect critiques that Trans Mountain puts forward in their Final Argument regarding the Drs. Gunton/Broadbent et al Public Interest Report.

405. At page 405 of their Final Argument433, Trans Mountain states that Dr. Gunton et al assume 550 in rail and that this overstated surplus capacity because if there is surplus pipeline capacity oil will be diverted from rail to pipelines. It is important to note that all transportation assumptions and supply and demand assumptions relied upon by Dr. Gunton et al are from CAPP, which Trans Mountain acknowledges are the best source for such information, and which Trans Mountain’s experts Muse Stancil also use. The rail assumption used by Dr. Gunton et al of 550 kp/d is also CAPP’s rail forecast assumption.434

406. Drs. Gunton et al. use no growth in rail in one of their sensitivity analysis and in another sensitivity they assume oil is diverted from rail as well as other pipelines. It is relevant that in both scenarios, there are still significant excess capacity costs.435 We also emphasize that Trans Mountain, in their critique of Dr. Gunton et al consistently fail to acknowledge that the Gunton et al analysis tested numerous alternative assumptions and that under all assumptions there is a net cost of this Project.

432 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. v, 72-73. 433 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 405. 434 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. 32. 435 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. 43-47, 71-73.

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407. We also note that Muse Stancil also assumes rail growth of 324 kp/d in 2025, 896 kp/d in 2030 and 1798 kp/d in 2038 as a viable option even with the construction of the Project436 and therefore to criticize Gunton et al for also including rail is contradictory to its own expert’s analysis. As Muse Stancil states:

Rail has become an important crude oil transportation mode in North America. Figure 22 below illustrates the growth of crude by rail transport from January 2010 through June 2015 (the most recent data as of the date of this report). Crude oil shipments by rail in the U.S. exceed 159,000 m3/d (1,000 kb/d), and an increasing proportion of the total volume is rail shipments from Canada into the U.S. In addition to the U.S. rail volumes, there are also crude oil shipments by rail within Canada itself.437

408. In Tsawout’s response to the Board’s December 7, 2015 Information Request in section 1.3, Dr. Gunton provides a complete explanation for why inclusion of rail is justified.

409. Throughout their Final Argument, and specifically at page 400, Trans Mountain often refers to the existence of their secured long term contracts as absolute confirmation for the need for the pipeline and that it is important that the Board simply let the market decide which projects should be built. Often, Trans Mountain says that to do otherwise would place the Board in the position of picking the winners and losers.438

410. It must be that such contracts are only one indicator of the need for a project; otherwise, there would be no need or role for the Board to consider public interest matters. Long term contracts from industry cannot be sufficient in and of themselves to determine whether a project is needed and in the public interest. In addition, it is important to emphasize that:

(a) The long term contracts for the Project were entered into during a period of strong markets. Even though producers confirmed that they still support contracts, they can only fulfil their contractual obligations by diverting oil from existing transportation facilities and imposing a cost incurred by other transportation systems. Trans Mountain ignores this cost in its analysis to support this Project.

436 Exhibit B427-2 - 2a Muse Stancil, Market Prospects and Benefits Analysis of the TMEP, September 2015 (A4T6E8), Table a-9, p. 70. 437 Exhibit B427-2 - 2a Muse Stancil, Market Prospects and Benefits Analysis of the TMEP, September 2015 (A4T6E8), p. 41. 438 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pp. 400 and 406.

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(b) The primary way to assess whether the Project is needed is to look at overall supply and demand for transportation systems within Canada. Trans Mountain’s analysis fails to do so. Dr. Gunton et al show the very strong likelihood for significant excess capacity (1.6 million b/pd, even without the Keystone XL and Northern Gateway Pipeline).439

411. At 407 of their Final Argument, Trans Mountain asserts that there are various benefits to some excess capacity. While this may have some accuracy, the issue is how much is too much excess capacity. Given there are significant impacts, effects and risks associated with these large pipeline projects, it is critical that the Board ensure that the proper balance is struck. It is also critical to acknowledge the potential that the amount of excess capacity that this Project could create (1.6 mb/pd in 2020, without Keystone XL and Northern Gateway Pipeline) would be unprecedented in Canada, and will impose a significant cost.

412. At page 407, Trans Mountain asserts that there must not be any excess capacity concerns by industry as no other pipeline company or shipper has intervened to object to the Project. This is, we submit, a difficult argument to successfully make given the oil market downturn. It is just as possible that companies are not intervening to express concerns about excess capacity in hearings for the Project because the downturn in the oil market that leads to this excess capacity (Fall 2014) occurred after the date for filing for intervenor status the hearings for the Project. In addition, filing of applications for new projects (Enbridge line 3 replacement, Energy East) were also made after the filing for intervenor status had long past in this Project.

413. Also, the costs of excess capacity are spread among a large number of stakeholders, and so it may easily be that no one stakeholder has a strong motivation, especially given current market conditions, to intervene to argue against the Project. We also note that the quote relied upon by Trans Mountain at p.408 of their Final Argument is a quote from shippers who are contractually committed to the Project, and therefore cannot be considered independent and does not reflect the views of the entire industry as suggested in the Final Argument.

439 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), See Figure 3, p. 30.

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414. At page 408 of their Final Argument, Trans Mountain suggests that CAPP is saying that all projects are needed in its 2015 forecast. However, while the quotes from CAPP are accurate, Trans Mountain’s interpretation of the quotes is inaccurate because the quotes are taken out of context. In its 2015 Report, CAPP is referring to all projects being needed under its high growth forecast at some point in the forecast period to 2030, but not as currently planned. CAPP’s figure shows that if all projects are constructed as planned there will be over 2 million bpd of excess capacity in 2020. Under CAPP’s low growth forecast only the Enbridge expansion projects are required (Clipper and Line 3 replacement).440

415. At page 411 of their Final Argument, Trans Mountain criticises Dr. Gunton et al’s inclusion of other potential projects, such as Energy East, in their benefit cost analysis. While it is correct that other projects were included in the Dr. Gunton et al analysis, this is standard analytical practice to include projects that are likely to proceed in such an analysis. Muse Stancil similarly includes other projects in their analysis:

For the Base Case, all of the major crude oil pipelines in North America are modeled.20. It is assumed that certain U.S. pipeline projects will be commissioned that, in Muse’s opinion, are very likely to proceed, as well as the integrity-related Enbridge Line 3 Replacement Project.” 441

416. Similarly in its submission on the Enbridge line 3 replacement, Muse Stancil includes a number of potential projects (Keystone XL, Northern Gateway Pipeline, and Energy East).442 We also note that in the Northern Gateway Pipeline hearings, Enbridge included potential projects proposed at the time (Keystone XL and Enbridge Clipper) in its Benefit Cost Analysis.

417. At page 411-412 of its Final Argument, Trans Mountain states that Dr. Gunton et al apportion all the excess capacity costs of Energy East on the Project. This is incorrect, and if Trans Mountain had asked for Information Requests this and many other incorrect interpretations would have been avoided. In fact, the estimate of surplus capacity costs in Gunton et al analysis capped the capacity of the Project at 590 b/pd, which is the

440 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. 28-35, 75. 441 Exhibit B427-2 - 2a Muse Stancil, Market Prospects and Benefits Analysis of the TMEP, September 2015 (A4T6E8), pp 37-38. 442 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. 9.

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contribution of only the Project to surplus capacity and does not include the surplus capacity costs created by Energy East. Total surplus capacity costs would have been much higher if Gunton et al included the costs generated by Energy East. As stated by the authors:

The quantity of unused capacity used in our BCA is the lower of: (1) the 590 kbpd diverted to the TMEP and (2) total unused oil transportation capacity at 95% capacity utilization. 443

418. At page 413 of Trans Mountain’s Final Argument, the Proponent suggests that Dr. Gunton et al failed to acknowledge that the Project will influence Western Canada crude prices. This is wrong. While Dr. Gunton et al conclude that it is unlikely that the Project will increase prices, they do include a scenario with higher crude prices and even under this higher prices scenario, the costs of the Project are higher than benefits.444 Similarly, at page 420, Trans Mountain states that Gunton et al incorrectly assume that the Project shipments are marginal deliveries establishing the setbacks for all Western Canada Sedimentary Basin (NSCB) sales. This again is wrong. Dr. Gunton et al do not assume, and do not state that the Project shipments are marginal deliveries or that the Project determines prices for all WCSB crude production.

419. At page 417 of Trans Mountain’s Final Argument, they suggest that Dr. Gunton et al incorrectly assume that the Muse Stancil market analysis relies on the 2014 IEA forecast. Again, this is simply wrong. Muse Stancil summarizes and relies on the 2014 IEA forecast on pp 16-20 in analyzing the global oil market, and states that:

The IEA forward path for the average crude oil import prices is also notable in Figure 5 above.10 Since the oil price simultaneously influences oil demand and oil supply, the IEA uses an iterative modelling exercise to determine the oil price at which the indicated oil demand (by scenario) would be supplied to the market. Even the 450 Scenario, which significantly reduces oil demand, still requires average crude oil import prices in the US$100.00/bbl range (in 2013 dollars).

443 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. 43. 444 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. 45-47.

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420. As stated in the Dr. Gunton et al Public Interest Report the IEA forecast used by Muse Stancil is outdated and the new IEA forecast has a scenario with oil prices staying below $85 to 2048, and both IEA forecasts are well below the forecasts used by Muse Stancil.445

421. At pages 398 onward of the Final Argument, Trans Mountain argues that Muse Stancil’s price impact analysis is accurate and criticizes Dr. Gunton et al for failing to acknowledge that the Project will result in higher oil prices for Canadian crude oil producers. Indeed, Trans Mountain continues to maintain that these higher prices will be realized throughout the life of the Project. This is an unrealistic argument, and as the Dr. Gunton et al analysis shows there are serious flaws in this part of the Muse Stancil analysis. Trans Mountain’s suggestion that the result is higher prices throughout the life of the Project is simply unreliable. We summarize the principle problems with the Muse Stancil below.

422. The assumptions used in the Muse Stancil model are unrealistic and do not include a range of likely scenarios. Specifically, the Muse Stancil analysis:

 omits 3,046 kb/d of proposed WCSB pipeline transportation capacity from its analysis;  uses only CAPP’s high growth production forecast and does not test the impact of CAPP’s lower growth forecast, which reduces forecast production by about 1000 kbpd by 2030;  assumes no change in refinery capacity over the entire 20 years forecast;  uses lower TMEP toll costs based on capital costs of 5.5 billion instead of the higher toll rates based on the more recent capital cost estimate of 6.8 billion (Gunton, p . 42);  assumes rail costs are significantly higher than pipeline costs even though Trans Mountain’s own evidence concludes that they rail and pipeline costs are similar (Gunton, pp. 12-15);  assumes that increased crude oil costs to Canadian refineries are a benefit, contrary to previous MS studies that deduct these as a cost (Gunton, p. 19); and  assumes that the cost of the marginal shipment of crude by rail to the Gulf determines the price of all Canadian crude.

445 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. 18.

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423. The primary finding of the Muse Stancil model that increase exports to the US will result in lower Canadian crude prices is contrary to the actual observed performance of the oil market. Muse Stancil asserts that increased exports to the US will reduce the relative price of WCSB crude, which is contrary to the actual performance of the oil market. From 2006 - 2015 the relative price of Canadian crude actually slightly improved despite an increase in Canadian exports about 1.4 million b/pd to the US446 This result (uncontested by Trans Mountain) invalidates the findings of the Muse Stancil model.

424. The Muse Stancil model relies on a primary assumption that is inconsistent with oil market dynamics. The Muse Stancil model assumes that the Project will result in a decrease in crude supply to the US and does not include the increased imports from alternative non- Canadian suppliers that will fill the void left by reduced imports from Canada. These increased imports from other sources will eliminate any potential price lift in US oil prices and Canadian crude prices in US markets. The world oil market is an integrated market where supply and demand adjusts to set a world price for oil. Price increases in one market are tempered by increased supply to that market. While short term bottlenecks may impact regional prices over the short term, the only factor that impacts oil prices over the longer term is world supply and demand. The Project will have no impact on world oil supply or demand. The Project simply diverts some oil supply from one market to another, which is offset by other suppliers diverting shipments to compensate for the change caused by the Project. World oil supply and demand and hence oil prices are the same with or without the Project.

425. It is our submission that it is impossible for the Project to affect netback prices for all Canadians producers for the life of that Project. Trans Mountain’s continued assertion that it will do so lacks credibility. As stated by the Joint Review Panel in the Northern Gateway Pipeline decision:

The Panel notes that the crude oil netback analyses prepared by Muse and Wood Mackenzie generated a great deal of questioning by intervenors and, in final argument, several parties took the position that the results of these studies were unreliable. The Panel is of the view that new pipelines connecting producing regions with consuming regions change market dynamics in ways that cannot easily be predicted. As a result, it is difficult to determine the exact impact that a major

446 446 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), p. 16.

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project such as the Enbridge Northern Gateway Project may have on netback prices once it is placed into service.447

And in National Energy Board’s decision with respect to the Keystone XL Pipeline, the Board stated:

New pipelines connecting producing regions with consuming regions change market dynamics in ways that cannot easily be predicted. It is difficult to determine with certainty the impact that a major project such as the Keystone XL Pipeline may have on netback prices once it is placed into service.448

426. Finally, at pages 422-425 of their Final Argument, Trans Mountain strongly argues that it is unnecessary to do cost benefit analysis (CBA) and that CBAs are neither helpful nor appropriate because: a) there are too many intangibles that cannot be quantified; b) there are a wide range of results depending on assumptions used; c) there is no need to estimate cost of environmental impacts because the environmental impacts are mitigated.

427. These arguments cannot be supported. First, in their strategic plan, the NEB provides that the public interest is “inclusive of all Canadians and refers to a balance of economic, environmental and social interests that change as society’s values and preferences evolve over time. The Board estimates the overall public good a project may create, and its potential negative aspects, weighs its various impacts, and makes a decision.”449 This definition of the public interest requires identification and comparison of all costs and benefits to determine if there is a net benefit to Canada.

428. In previous decisions, the NEB has applied this test by comparing the burdens of the project to the benefits. The best way of comparing costs and benefits to determine public interest and whether Canadians are better off with the project is with a CBA. In the recent Northern Gateway decision, for example, the Joint Review Panel stated that:

The Panel considers the burdens the project could place on Canadians, and the benefits the project could bring to Canadians ... whether present and future

447 Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 2: Considerations, National Energy Board, December 19, 2013, at p. 332, online at: http://gatewaypanel.review-examen.gc.ca/clf- nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2-eng.pdf. 448 OH-1-2009 Reasons for Decision (A1S1E7), National Energy Board, March 3, 2010, p. 32, online at: https://docs.neb-one.gc.ca/ll-eng/llisapi.dll/fetch/2000/90464/90552/418396/550305/604643/604441/A1S1E7_- _OH-1-2009_Reasons_for_Decision.pdf?nodeid=604637&vernum=-2. 449 National Energy Board, “Strategic Plan”, (April 16, 2015) online: < http://www.neb- one.gc.ca/bts/whwr/gvrnnc/strtgcpln-eng.html?pedisable=true>

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generations of Canadians would be better off, with or without, the Enbridge Northern Gateway Project.450

429. At paragraph 53 of their Final Argument, Trans Mountain concludes that the benefits and burdens of the project are “fairly balanced” and that the Project meets the public interest test.

430. Trans Mountain accepts that the benefits must be weighed against the costs but provides no basis to compare the costs and benefits and no basis to support the conclusion that the benefits outweigh the costs. This asymmetrical treatment of including quantitative estimates of benefits and omitting any estimate of costs undermines the entire conclusion of Trans Mountain that the Project is in the public interest.

431. The only way of accurately comparing costs and benefits is to quantify them and compare them by some standard transparent methodology such as CBA. Without a comparison of both the costs and the benefits, it is not possible to reach a conclusion on the public interest.

432. Secondly, Trans Mountain argues that there is no need to include environmental costs because they are fully mitigated and internalized in project costs. This argument is wrong. Some environmental costs are eliminated by mitigation measures but there are many adverse environmental impacts such as impacts to the exercise of Aboriginal title and rights, air pollution, GHG emissions, and damage from spills that will result from the Project and therefore need to be included in the assessment of costs. In fact Trans Mountain acknowledges and lists 167 adverse environmental impacts that will result from the project.451 Although some of these impacts are reduced by mitigation measures, adverse impacts will still occur and must be included in the assessment of costs and benefits.

433. Thirdly, Trans Mountain omits any consideration of the costs of surplus transportation capacity in its analysis of costs and benefits. The Dr. Gunton et al Public Interest Report presents transparent analysis that supports the reasonable conclusion that significant

450 Report of the Joint Review Panel for the Enbridge Northern Gateway Project, Volume 2: Considerations, National Energy Board, December 19, 2013, at p. 8; online at: http://gatewaypanel.review-examen.gc.ca/clf- nsi/dcmnt/rcmndtnsrprt/rcmndtnsrprtvlm2-eng.pdf. 451 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), Appendix A, p. 86.

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surplus capacity costs could result from the Project, potentially in the range of between $2.2 and $6.2 billion (even if Northern Gateway Pipeline and Keystone XL are not built). The omission by Trans Mountain of this significant cost variable from the assessment of the costs and benefits and the public interest is a major omission that contradicts Trans Mountain’s conclusion that the costs and benefits are fairly balanced.

434. Fourthly, Trans Mountain’s argument that a Cost Benefit Analysis is inappropriate because there are a wide range of results depending on different assumptions is again unfounded. Of course, different assumptions will produce different results. This is true of any method. It is sound analytical practice to test a range of likely assumptions to determine the impact on the conclusion. Trans Mountain fails to do so and in our strong submission that failure is fatal to its analysis. The Muse Stancil analysis attempts to estimate benefits using only one set of possible assumptions (such as using only the CAPP high production forecast) and therefore the results are of questionable use. The future is not so simplistic and easy to predict. Rather, as presented in the Dr. Gunton et al analysis, a wide range of likely assumptions are presented and tested with sensitivity analysis. The range of results then becomes a useful predictor of possible outcomes. It is important to note that using all the likely possibilities, this Project will be a net cost to Canada.

435. Fifthly, Trans Mountain’s argument that comparison of costs and benefits in a CBA is inappropriate because there are intangibles is wrong. The Multiple Account CBA methodology explicitly accounts for intangibles by listing them as separate qualitative items along with the tangible costs and benefits that can be quantified and compared. Trans Mountain is arguing that the Board should only have a quantification of the benefits and not the costs in order to weigh the public interest. This is grossly deficient because it provides an inaccurate picture from which to assess the Project. Trans Mountain is essentially using a partial CBA approach (quantifying benefits) instead of a more comprehensive CBA that includes both benefits and costs in a manner that allows for accurate comparison. To include a partial CBA that quantifies only benefits and omits key cost components and then argue that this is superior to a more comprehensive CBA that includes both costs and benefits is an argument without any merit.

436. Trans Mountain’s Application relies strongly on the significant economic impact benefits that will come from employment, GDP, and government revenue. Trans Mountain

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criticizes Drs. Gunton et al. for assuming that capital and labour employed by the Project would be employed on other projects if the TMEP is not built.452 The principle critique of Gunton is that because the capital is provided by Kinder Morgan, Trans Mountain’s US parent company, that capital would not otherwise be invested in Canada and while some of those employed by TMEP would otherwise be employed, some may not because the labour market is not fully employed.453 Trans Mountain also argues that the Conference Board of Canada provided clear evidence that the B.C. labour market cannot be considered fully employed, and it is not reasonable to assume that the Project will not create new incremental jobs.454

437. These criticisms of Trans Mountain are inconsistent with their own expert evidence. Firstly, Muse Stancil’s report relies on the assumption that if the TMEP is not built, other transportation projects (rail) will be built to ship the same quantity of oil to market and these investments in substitute transportation facilities will generate equivalent economic impacts to those that would have been generated by the TMEP.455 Secondly, both Trans Mountain and Gunton agree that while some of the employment may be incremental, not all of the employment is incremental. It appears common ground among the experts that if the Project is not built, other transportation projects will be built to employ most if not all of the workers that would have been employed on the TMEP456. It should also be noted that Drs. Gunton et al. do include an estimate of the employment benefits of the Project in their analysis, and even with these employment benefits included the Project could result in a large net cost to Canada.457

438. In the Final Argument, Trans Mountain asserts that because Drs. Gunton et al. do not recognize the price lift they assume away the fiscal benefits.458 This is incorrect. Drs.

452 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 442-444. 453 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 443. 454 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 443. 455 Exhibit B427-2 - 2a Muse Stancil, Market Prospects and Benefits Analysis of the TMEP, September 2015 (A4T6E8), pp. 41-43. 456 Exhibit C355-15-28 -Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP (A4Q1G6), pp. 20, 34 and 47-48. 457 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. iii-v, 47-48. 458 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), at pdf p. 443.

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Gunton et al. include a price benefit and fiscal benefit in one of the scenarios presented459 and even with the inclusion of this benefit the Project could result in a net cost to Canada.

The problem with the Trans Mountains assertions regarding employment and investment generated by the TMEP is that they assert these benefits are all incremental and none of these would occur if the TMEP was not built. These assertions are in contradiction with Muse Stancil and are shown to be erroneous by Drs. Gunton et al. Trans Mountain incorrectly assumes that economic impacts are economic benefits. This argument is illogical, given that if all economic impacts are benefits than we could simply build a more expensive and less efficient pipeline (eg. a zig zag route) that would cost more and therefore generate higher economic impacts.

439. We also note that while the Board has determined it would not consider the effects of upstream oil production activities induced by the Project, including climate change related impacts, yet Trans Mountain is asking that the economic benefits of those same activities can be decisive in the determination of whether the Project is in the public interest. This is unbalanced. It is another example of looking at only the potential benefits and ignoring the significant costs associated with the Project.

(2) Respecting Tsawout Title and Rights is in the Public Interest

440. It is in the interest of all Canadians to ensure that the Constitution is respected through the reconciliation of section 35 Aboriginal rights with the assertion of Crown sovereignty, the protection of Aboriginal rights, and ensuring that the process of reconciliation is promoted so that the honour of the Crown is upheld.

441. In its written and oral summary argument Trans Mountain stressed that the public interest consideration is not site specific, is not local and is not provincial.460 Counsel for Trans Mountain emphasized that it is what is in the interest of all Canadians, collectively, that is to be the ultimate consideration of the Board.

459 Exhibit C355-31-1 - Tsawout First Nation Expert Report. Public Interest Evaluation of the TMEP Dec. 2015 (A4W0Q9), pp. 45-48. 460 Exhibit B444-2 - Trans Mountain Revised Final Argument (clean) (A4W6L8), lines 817-819; Trans Mountain Oral Summary Argument, Dec. 17, 2015 (A4X0Z5), line 12086.

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442. Implicit in Trans Mountain's submission is the suggestion that the impact of the Project on Aboriginal title and rights, as they relate to the public interest consideration, weighs little on what is in the interest of all Canadians. It would appear that Trans Mountain views the Project's impacts on Aboriginal title and rights as "site specific" or "local" concerns and impacts.

443. However, it is incorrect to characterize the impact of the Project on Indigenous groups simply as local in nature. Rather, as the rights of Aboriginal peoples are enshrined in the Constitution of Canada, any impact that would unjustifiably infringe upon these rights is of national public interest as it is in the interest of all Canadians to ensure that the constitution is honoured and respected, and that the process of reconciliation is upheld and promoted. This is confirmed in recent Canadian jurisprudence relating to injunctive relief, and is grounded in the body of law that has developed since s. 35 was entrenched in the Constitution.

(a) The Case Law

444. There are a number of cases related to interlocutory injunctions which specifically speak to the interplay between Aboriginal rights, reconciliation, and the public interest. In order for a party seeking an interlocutory injunction to be granted that injunction, they must first demonstrate that they are able to meet the three part conjunctive test as set out in RJR MacDonald Inc. v. Canada.461 The party seeking an interlocutory must prove:

(a) there is a serious issue to be tried;

(b) irreparable harm would result if an injunction is not granted; and

(c) the balance of convenience, considering all the circumstances, favours granting the order.

445. In constitutional cases where interlocutory relief is sought the courts consider the public interest as part of the balance of convenience analysis.462 As with the public interest in the context of the Board’s review, the "public interest" in the context of interlocutory

461 [1994] 1 SCR 311 (RJR). 462 RJR at para 69.

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injunctions includes both the concerns of society generally, and the particular interests of identifiable groups.463

446. In Ahousaht Indian Band v Canada (Minister of Fisheries and Oceans),464 the Ahousaht First Nation, along with a number of other applicant First Nations, sought an interlocutory injunction prohibiting the opening of a commercial herring roe fishery on the west coast of Vancouver Island. Justice Mandamin, speaking for the Federal Court, noted that the reconciliation of section 35 Aboriginal rights with the assertion of Crown sovereignty was in the public interest, and that it clearly favoured the applicants in that instance.465 Further, the Court noted that the public interest also lies with giving recognition to Court declarations and decisions which in this case involved the Ahousaht First Nation’s proven commercial fishing rights:

To ignore or disregard such Court declarations and directions is to not only ignore the obligation to follow Courts’ direction with respect to addressing Aboriginal rights, but also to lower the standing of the Courts in public regard by the disregard for such declarations and directions466.

447. Similarly, in Haida Nation v Canada (Minister of Fisheries and Oceans),467 the Haida sought an injunction prohibiting the opening of a herring roe fishery in their territory. The federal Court again referenced both consultation and reconciliation in its consideration of public interest:

Notwithstanding the public interest balance for all Canadians referred to by the Respondent, the balance of convenience favours the Applicants. The Hounour of the Crown in dealing appropriately with consultation and reconciliation with the Haida Nation is also very much in the public interest, given the special conservation and ecological agreements governing the Haida Gwaii area.468.

448. The use of this approach has not been limited to the federal Courts. In Wahgoshig First Nation v Ontario, 2011 ONSC 7708 (Wahgoshig) the Ontario Supreme Court utilized a similar line of reasoning:

463 RJR at para 71. 464 2014 FC 197 (Ahousaht). 465 Ahousaht at para 30. 466 Ahousaht, at para 32. 467 2015 FC 290 (Haida 2015). 468 Haida 2015, at para 61.

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I am mindful of the importance of reconciliation and the derivative concepts of consultation and accommodation … I am also mindful of EFN’s position that to refuse to enjoin Solid Gold from its drilling, in the circumstances of this case, will send a message that Aboriginal and Treaty rights. Including the rights to consultation and accommodation can be ignored by exploration companies, rendering the First Nations constitutionally protected rights meaningless. This would not be in the public interest. It is in the public interest to ensure that the Constitution is honoured and respected.469

449. As has the British Columbia Supreme Court in Taseko Mines Ltd. v. Phillips:470

It is also very much in the public interest to ensure that, in circumstances such as these, reconciliation of the competing interests is achieved through the only processes available, being appropriate consultation and accommodation … Only by upholding the process can reconciliation be promoted, without reconciliation, nothing is accomplished. This interest, in my view, is at risk should the injunction be denied, and weighs heavily in the balance of convenience.471

450. From the above, a central theme emerges. The reason why Aboriginal rights must be included in the public interest consideration is twofold: first, that the public interest lies in the reconciliation of the assertion of Crown sovereignty with section 35 Aboriginal rights, rights that have been constitutionally recognized and affirmed, and second, that the public interest also lies with giving recognition to Court declarations and directions (those that have given life and protection to section 35 rights).

451. Whether the Crown has met its constitutional duty to consult and accommodate First Nations prior to issuing any approval of the Project is a matter of public interest and necessity.

(3) Recognition and respect for Tsawout s. 35 Treaty and Aboriginal Rights is in the Public Interest

452. In its oral summary argument, Trans Mountain asserts that there are no environmental or social impacts from the Project that cannot be reasonably mitigated, and that there will also be significant benefits to Aboriginal groups and communities along the right-of-way through employment, economic activity and the payment of higher municipal taxes. In

469 Wahgoshig, at paras 71-71. 470 2011 BCSC 1675 (Taseko). 471 Taseko, at para 60.

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addition, Trans Mountain stated the following with regard to the public interest consideration generally:

Public interest is not defined or determined by loud voices, by politics, by special interests, by the company, or by individuals. Public interest is the common good. And the question you should put to yourself; is this the right thing to do for the country at this time? Is this the right thing to do for Canadians? So regardless of the clamour, the authorities are clear that a specific individual’s or locale’s interest must be weighed against the greater public interest. And if a project is in the greater public interest, the specific interests must give way.472

453. Implicit in these assertions is that the Project's allegedly insignificant impacts on Indigenous peoples are local in nature, and should be weighed against the greater public interest as a separate and distinct consideration. As the case law above clearly demonstrates, this is incorrect.

454. First, as clearly established in the evidence and summarized above, the potential impacts, effects and risks of this Project to Tsawout are not insignificant. There is ample evidence on the record to show that the impacts of the Project on Tsawout title and rights will be significant.

455. In Haida, the SCC stated the following:

Put simply, Canada’s Aboriginal peoples were here when Europeans came, and were never conquered. Many bands reconciled their claims with the sovereignty of the Crown through negotiated treaties. Others, notably in British Columbia, have yet to do so. The potential rights embedded in these claims are protected by s. 35 of the Constitution Act, 1982. The honour of the Crown requires that these rights be determined, recognized and respected. This, in turn, requires the Crown, acting honourably, to participate in processes of negotiation. While this process continues, the honour of the Crown may require it to consult and, where indicated, accommodate Aboriginal interests.473

456. The reconciliation of section 35 Aboriginal rights with the assertion of Crown sovereignty is in the public interest, as is ensuring that the Constitution is honoured and respected. This point is reiterated in Little Salmon:

The decision to entrench in s. 35 of the Constitution Act, 1982 the recognition and affirmation of existing Aboriginal and treaty rights, signalled a commitment by

472 Trans Mountain Oral Summary Argument, Dec. 17, 2015 (A4X0Z5), lines 12101-12102. 473 Haida, at para 25.

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Canada’s political leaders to protect and preserve constitutional space for Aboriginal peoples to be Aboriginal. At the same time, Aboriginal people do not, by reason of their Aboriginal heritage, cease to be citizens who fully participate with other Canadians in their collective governance.474

457. Reconciliation is not a simple consideration of how one Indigenous group is impacted at any one time in any discreet instance. It is not a burden to be borne solely by the Indigenous peoples affected. Reconciliation is between all Indigenous peoples, the government of Canada, and all Canadians. Any action taken that runs counter to this ultimate goal impacts everyone, not just Indigenous peoples on a local or regional level, and should be assessed from that perspective. It is a benefit to all Canadians when constitutional rights are upheld, and a burden when those rights are not given due protection.

458. Further, as noted in Ahousaht, the integrity of Canada's judicial system may also be called into question when Court declarations and directions with respect to addressing Aboriginal rights are disregarded. The Courts have provided clear direction to both the Crown and proponents that Aboriginal rights are to be respected, that the reconciliation of section 35 Aboriginal rights with the assertion of Crown sovereignty is in the public interest, and that the constitution is to be honoured and respected. From this perspective, the consideration of section 35 rights as a matter of great public interest is not only legally mandated, it is simply common sense.

459. In sum, giving due consideration to Aboriginal rights in the context of the public interest is well grounded in section 35 of the constitution and in recent case law relating to interlocutory injunctions. When constitutional rights are not upheld, all Canadians are affected. The reconciliation of section 35 Aboriginal rights with the assertion of Crown sovereignty is in the wider public interest, as is ensuring that the Constitution is honoured and respected. When these constitutionally and judicially mandated obligations are not realized all Canadians are worse off, it cannot be characterized as simply local or regional in nature.

474 Little Salmon at para 33.

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L. Conclusion

460. Tsawout has established treaty rights to fish as formerly and hunt within W̱ SÁNEĆ territory, which has been described in Tsawout’s evidence and in these submissions. The Crown is required to justify the infringement to the exercise of those rights, including matters incidental to those rights such as travel to and from fishing and hunting grounds. Nothing in the evidence filed by Trans Mountain or the Crown suggests that the Project’s infringements can be justified. The Project is not in the public interest and the Crown has not justified the infringement to Tsawout’s rights, nor met the high burden of consultation and accommodation that is part of the justification test.

461. Furthermore, Tsawout has unextinguished Aboriginal rights, including title, over their lands and waters which also must be fully considered by the Board and the Crown. Tsawout has presented evidence of a strong prima facie claim of Aboriginal title and rights within W̱ SÁNEĆ Territory, and strong evidence that the Project will impact upon their title and rights.

462. Tsawout's treaty rights and unextinguished Aboriginal title and rights are recognized under section 35 of Canada's Constitution and under the United Nations Declaration on the Rights of Indigenous peoples.

463. The Board must find that Trans Mountain's assessment of the risks of Marine Shipping Components of the Project is deficient in various ways, and as such, it cannot recommend the Project. These deficiencies include, but are not limited to, the assessment of: traditional and current marine use by Tsawout; impact of vessel wake on the W̱ SÁNEĆ burial sites; the impact of vessel traffic on traditional and current marine use; navigation and safety measures; oil spill risk and oil spill response planning in the marine environment; and the failure to consider alternative shipping routes.

464. The Board must also find that the TERMPOL Review Committee had inadequate information to make the findings and recommendations they did in the TERMPOL Report, some of which have been identified in these submissions. Therefore, the Board, Trans Mountain and the Crown cannot rely upon navigation and safety measures in the TERMPOL Report to mitigate the impacts of the Marine Shipping Components of the Project, including increased vessel

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traffic and the potential risks of an oil spill in the marine waters, including the marine waters in W̱ SÁNEĆ Territory.

465. In this hearing, Tsawout has presented evidence that if the Project is approved, the Marine Shipping Components of the Project, including increased vessel traffic and vessel wake, will have significant adverse environmental effects on W̱ SÁNEĆ Territory, and the resources within it.

466. The Board must conclude that the probability of an oil spill within the marine waters is high.

467. The Board must conclude that accidents or malfunctions, including spills, from the Marine Shipping of the Project would result in significant adverse environmental effects in W̱ SÁNEĆ Territory. These effects would impact upon Tsawout’s use of their territory and resources, including to Tsawout’s traditional harvesting, the exercise of their spiritual and cultural practices, economic uses of their territory, and to the exercise of W̱ SÁNEĆ laws and governance.

468. These adverse effects, and their impact to Tsawout’s current and future use of W̱ SÁNEĆ Territory, cannot be mitigated, nor can the infringements to Tsawout's Douglas Treaty rights be justified, such that the Project can be recommended or approved.

469. The Board must find that the impacts, effects and risks associated with the Project outweigh potential benefits, including any economic benefits, such that the Project is not in the public interest. The Project is likely to result in a net cost to Canada under likely scenarios and therefore Canada will be worse off as a result of the Project.

470. Given the Project’s impacts on Tsawout’s exercise of their established right to fish as formerly, and given the Project’s impacts on Tsawout’s Aboriginal title and rights, the Project should not be recommended, and a Certificate of public convenience and necessity for the Project should not be issued in the absence of Tsawout’s consent.

471. Meaningful consultation and accommodation between Tsawout and the Crown has not occurred. Nation to Nation relations and agreements remain outstanding and there is no foreseeable need for this Project.

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472. In conclusion, the Board must recommend against the issuance of a Certificate of Public Convenience and Necessity.

ALL OF WHICH IS RESPECTFULLY SUBMITTED THIS 12th DAY OF JANUARY, 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