From: Saely,Analise [CEAA] Sent: December 6, 2016 6:22 PM To: Myles,Debra [CEAA]; Panel RBT2 / Commission RBT2 (CEAA/ACEE) Cc: 'Jennifer Griffith'; Ruth Sauder Subject: FW: RBT2 and CEAA Registry
Hi Debra, as we discussed, can the RBT2 panel please consider posting the three attached documents to the RBT2 registry website? Please let us know what the panel decides. Thanks!
Analise Saely
From: Jennifer Griffith
Hi Analise,
I have attached a copy of CEAA’s letter dated September 15, 2016 explaining CEAA’s reassessment of the scope of consultation with Penelakut.
This letter does not appear to have been uploaded onto the CEAA Registry for the Robert Bank Terminal 2 Project.
The letter of January 7, 2014, with CEAA’s original assessment of the scope of consultation with Penalkut is on the Registry, at:.
http://www.ceaa.gc.ca/050/documents/p80054/97740E.pdf
It is Penelakut’s understanding that if a document is not on the Registry it is not “before” the Panel.
Penelakut therefore requests that the September 15, 2016 letter be placed on the Registry.
Please feel free to give me a call if you have any questions.
Best Regards,
Jennifer
Jennifer Griffith Donovan & Company
Pene[a t rr'ribe
April 41h, 2016
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY 701 West Georgia Street, Suite 410 via email: Vancouver, BC V7Y 1C6 analise. saelv@ceaa-acee. gc. ca
Attention: Analise Saely, Crown Consultation Coordinator
Dear Ms. Saely:
Re: Follow-up to January 27, 2016 Meeting re RBT2
Thank you for your email of February 11, 2016 providing draft meeting notes and a list of follow-up actions resulting from our January 27, 2016 meeting to discuss Crown consultation with the Penelakut Tribe about the Roberts Bank Terminal 2 (RBT2) project. We are writing to follow up on a number of matters discussed at that meeting.
I. Correspondence
At our meeting, you advised that correspondence sent by the Penelakut Tribe to Port Metro Vancouver (PMV) and/or the Canadian Environmental Assessment Agency (CEAA) would not automatically be posted on the CEAA Registry for RBT2. We discussed two letters written by the Penelakut Tribe which are relevant to the work of the Panel which will eventually be appointed, but which are not currently in the CEAA Registry. These letters are a letter dated December 8, 2015 from the Penelakut Tribe to you and a letter dated January 4, 2016 from the Penelakut Tribe to PMV.
The Penelakut Tribe hereby requests and authorizes CEAA to post those two letters on the CEAA Registry.
II. Strength of Claim Assessment
CEAA has advised the Penelakut Tribe that it has made a preliminary determination that the scope of consultation required with the Penelakut Tribe is moderate. CEAA advised that its preliminary assessment of the strength of the Penelakut Tribe's claimed rights is based on a review of Statement of Intent maps and the fact that the Penelakut Tribe is at Stage 4 in the BC Treaty Negotiation Process. At the time of our meeting, CEAA had
Box 360 Chemainus, BC VOR 1 KO Phone:
not considered any of the evidence that the Penelakut Tribe has provided as part of Cowichan Nation Alliance aboriginal title and fishing rights claim to Tl'uqtinus and the Fraser River.
CEAA advised that an environmental assessment is not a rights determination process, and that, therefore, the CEAA takes only a cursory look at strength of claim. While environmental assessment may not be a rights determination process, the scope of consultation required is driven by two factors: an assessment of strength of claim and the degree or extent of potential adverse impact.
It is still not clear to the Penelakut Tribe after our meeting how CEAA determined that consultation with the Penelakut Tribe is at the moderate end of the spectrum of consultation enunciated by the Supreme Court of Canada in the Haida decision.
The stage of negotiation reached in a non rights-based negotiation process is far less relevant to a strength of claim assessment than a review of historic and ethnographic information. The Penelakut Tribe has provided this type of information to Canada and expects CEAA to take it into consideration.
It is important to the Penelakut Tribe that CEAA be transparent about how it arrived at its scope of consultation determination. A vague reference to the stage reached in the BC Treaty Process does not provide this transparency.
At our meeting we asked CEAA to reconsider its strength of claim assessment in light of additional information provided through the RBT2 process and through the Tl'uqtinus litigation. You indicated that this was a question for you to address with your legal counsel. We are confident that your legal counsel will agree that strength of claim assessment must be based on the available information, and not just through the narrow lens of a non-rights-based treaty process.
Ill. Potential Project Effects
You provided us with a document dated January 27, 2016, titled Preliminary Depth of Consultation Assessment for Penelakut on RB T2 - Project and Marine Shipping Associated with the Project. This document included the conclusion that "the project is expected to affect a moderate portion of Penelakut traditional territory." This gave rise to a discussion of the limited areas available in Penelakut Territory for certain activities. We agreed that mapping which shows the cumulative impacts on fishing and crabbing resources in Penelakut Territory would be valuable information to provide to the Panel as context for the potential impacts of the project on the Penelakut Tribe. - 3 -
IV. Funding
The Penelakut Tribe has not received adequate funding to participate meaningfully in the assessment of and consultation with the Crown regarding RBT2. In your email you state that the Agency has informed PMV that it encourages PMV to provide funding beyond CEM participation funding.
We would like to conduct and provide cumulative impacts mapping to the CEM process and are of the view that this mapping is critical for an adequate assessment of project impacts on the Penelakut Tribe. As you can appreciate, PMV may not see the value of the RBT2 environmental assessment being informed by the Penelakut Tribe's cumulative impacts mapping.
V. Meeting Notes
We have reviewed the meeting notes you provided and have enclosed a red-lined version of the notes based on our own notes.
VI. Next Steps
We look forward to Canada's revised assessment of the scope of consultation required with the Penelakut Tribe. We assume that this assessment will consider new information relevant to both the Penelakut Tribe's strength of claim and potential project impacts on the Penelakut Tribe.
We will be requesting funding from PMV to cover the cost of providing cumulative impacts mapping on the Penelakut Tribe's fishing and crabbing areas and will advise of PMV's response.
Yours truly, PENELAKUT TRIBE
Encl. cc: Bryan Nelson, Port Metro Vancouver Via Email:
July 271h, 2016
CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY 701 West Georgia Street, Suite 410 Vancouver, BC V7Y 1C6 Via email: Analise. Saely@ceaa-acee. gc. ca
Attention: Analise Saelv, CEAA Consultation Coordinator
Dear Ms. Saely:
Re: Roberts Bank Terminal 2 Consultation
Our representatives met with you and Ms. Mclean of the Canadian Environmental Assessment Agency on January 27, 2016 to discuss the Crown's proposed approach to consultation on the Roberts Bank Terminal 2 ("RBT2") Project. This letter is in follow-up to that meeting and subsequent developments.
I. Strength of Claims
At the January 27, 2106 meeting the Penelakut Tribe sought additional information about how Canada had assessed our strength of claim and the potential project impacts to arrive at its preliminary depth of consultation. In subsequent correspondence you provided a vague description of Canada's process.
The Federal Court of Appeal, in its recently released judgment in Gitxaa/a eta/. v. Canada, has confirmed the requirement for the Crown to engage in a meaningful dialogue with First Nations about the strength of their claim. 1
To support that dialogue, please provide us with a list of the sources Canada is relying on to assess the strength of our claim and Canada's views concerning the content and strength of our claims to Aboriginal title and Aboriginal rights in the project area.
II. Clarification of Proposed Consultation
The Federal Court of Appeal has also confirmed that Aboriginal subjects which must be considered by virtue of s. 5 of the Canadian Environmental Assessment Act, 2012 is only a small subset of the subjects that make up Canada's duty to consult. 2
Given this, please confirm that Canada is prepared to consult with the Penelakut Tribe about the full range of the project's potential impacts on our Aboriginal rights, and will
1 Gitxaa/a et at. v Canada, 2016 FCA 187, para. 309. 2 Gitxaala eta/. v Canada, 2016 FCA 187, para. 240.
Box 360 Chemainus, BC VOR 1 KO Phone:
Ill. Additional Information Required
In early May of 2016, we submitted a proposal for funding for mapping work to the proponent, Vancouver Fraser Port Authority ("VFPA"). The proposed mapping was to provide information about constraints on shellfish harvesting in the marine area of the Penelakut Tribe's Core Territory to support the assessment of the effects of the RBT2 project on the Penelakut Tribe's fishing rights and practices.
In late June of 2016, the VFPA declined to provide funding, stating that it had determined that "assessment of cumulative effects associated with past developments (that may interact with the residual effects of the Project) has been completed ... ".
The Penelakut Tribe is concerned that the VFPA is applying the wrong spatial boundaries to assessing impacts to the Penelakut Tribe. A firm understanding of available shellfish areas in Penelakut Territory is needed to inform how the impacts to shellfishing at Roberts Bank will impact Penelakut aboriginal rights and current shellfishing practices.
The Crown has described its consultation objectives as including the objective to "guide the proponent to gather information about potential adverse impacts from the Project . . . on established or potential Aboriginal or Treaty rights". The Penelakut Tribe is simply asking that the review of this project and the Crown consultation be informed by the important information the mapping project would provide.
Please advise us what steps CEAA is prepared to take to ensure this important information can be provided to the Project Review Panel and will be available to inform Crown consultation.
Yours truly, PENELAKUT TRIBE
cc: Bryan Nelson, Vancouver Fraser Port Authority Via Email:
September 15, 2016
Penelakut Tribe P.O. Box 360 Chemainus BC V0R 1K0
Delivered by email:
Dear Chief Joan Brown and Councillors,
Thank you for your active participation in the federal environmental assessment (EA) of the proposed Roberts Bank Terminal 2 Project (the Project). I am writing to respond to a number of requests Penelakut made during the January 27, 2016 meeting with the Canadian Environmental Assessment Agency (the Agency), as well as requests from your letters dated December 8, 2015, April 4, 2016, July 27, 2016 and the Cowichan Nation Alliance letter of March 3, 2014.
Request for a Reassessment of the Preliminary Depth of Consultation
As requested, the Agency has reconsidered the preliminary depth of consultation assessment for Penelakut. The depth of consultation assessment is an iterative process based on two main factors: (i) potential or established Aboriginal rights; and (ii) potential adverse impacts of a project on those rights. This preliminary assessment allows the Agency to determine the appropriate depth of consultation for a proposed project, and the consultation activities that are commensurate with that depth, and is revised throughout the environmental assessment as new information is acquired.
For the first factor, the Agency seeks to gain a high-level understanding of the nature and extent of potential or established Aboriginal rights that may be affected by the proposed project (i.e. on a spectrum of weak asserted rights to strong established rights). The second factor is the key element in assessing depth in the context of an environmental assessment. The Agency considers both the likelihood of potential impacts and the seriousness of those impacts (i.e. low, moderate or serious). The interaction between the two factors allows the Agency to make a preliminary determination of the appropriate depth of consultation for each group. This determination can take a number of factors into consideration, including, but not limited to, status of treaty negotiations, certainty or likelihood of potential impacts, historic or cumulative effects, ongoing court cases, or recent court decisions.
Penelakut provided additional information related to the exercise of Penelakut’s asserted rights in the Salish Sea, Gulf Islands and Lower Fraser River, including in and around Roberts Bank during our January 27, 2016 meeting and in your April 4, 2016 letter. Thank you for this information. At this stage of the environmental assessment process, the analysis conducted by the Agency when considering the nature and extent of asserted Aboriginal rights does not involve a detailed and legal strength of claim assessment. Rather, the Agency seeks to identify relevant information regarding the exercise of asserted rights for the purposes of consultation during the environmental assessment process. In doing so, the Agency does not carry out a detailed assessment or come to conclusions about the merits or validity of that information. It is
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important to note that consultation is not a rights determination process, and the information on which the Agency’s approach to consultation is based has not been tested in a litigation context. In addition to the information provided by Penelakut in this environmental assessment process, the Major Project Management Office, acting as the Crown Consultation Coordinator for the Kinder Morgan Trans Mountain Expansion Project, has released its preliminary view that for the purposes of consultation on that project and associated marine shipping, Penelakut has a prima facie strong claim to asserted rights within portions of the marine shipping route, and a weak claim in other areas. The Crown notes that at the time of this letter, the information shared for the Kinder Morgan Trans Mountain Expansion Project is preliminary and draft.
The Crown also acknowledges that the Tsawwassen First Nation has established treaty rights in the geographic area of the Roberts Bank Terminal 2 Project, including the marine shipping route associated with the Project. In addition, Musqueam has an Aboriginal right to fish for food and ceremonial purposes in the geographic area of the Roberts Bank Terminal 2 Project, as established in the 1990 R. v. Sparrow decision.
Taking into account our preliminary understanding of the strength of claim and potential seriousness of adverse impacts of the Project and associated shipping set out below, the Agency has made a policy decision to revise its preliminary depth of consultation assessment and consult with Penelakut at the deeper end of the consultation spectrum. As a result, an updated Consultation Workplan for Penelakut is provided in Attachment #1.
Potential Impacts of the Project and associated marine shipping on Penelakut
In your letter of July 27, 2016, you requested a list of the impacts from the Project to Penelakut’s Aboriginal Rights, including Aboriginal Title, that have been identified by Canada to date. This information was provided during our meeting on January 27, 2016, and is summarized below for ease of reference. Please note that through the panel process, the Crown has requested further information with respect to potential impacts of the Project and marine shipping associated with the Project on the exercise of Aboriginal rights. Please see registry document #526.
Long-term impacts may occur from the following project components/activities: • Construction of the marine terminal, berth pocket, tug basin expansion and expanded causeway (including dredging, disposal at sea) • Various operations activities (maintenance dredging; effluent discharges; spills and leaks; increased shipping, road and rail traffic)
Potential impacts to the asserted right to fish may result from the following environmental effects of the Project: • Direct loss of marine aquatic habitat (eelgrass, mud flats, biofilm) • Changes to intertidal and delta foreshore areas • Changes to coastal geomorphology and water quality • Uptake and bioaccumulation of contaminants by marine species • Changes to predator-prey dynamics • Indirect effects from increased underwater noise, ship wakes and currents
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Potential impacts to the asserted right to hunt may result from the following environmental effects from the Project: • Direct loss of marine foraging habitat • Indirect changes to marine food sources • Increased predation risk • Sensory disturbances
Potential long-term impacts to the asserted right to gather plants may result from environmental effects such as loss or contamination of vegetation. Potential effects to human health may result from the following environmental effects from the Project: • Changes to regional air quality • Uptake of contaminants from country foods
The following impacts on potential or established Aboriginal or Treaty rights may occur from marine shipping associated with the Project: • Environmental effects to marine species: • Ability to access fishing areas; • Impacts to fishing gear; • Safety concerns; • Potential contamination of fish and other marine species that are consumed (from the shipping and from accidents & malfunctions); • Reducing fishing, hunting or harvesting resources can result in impacts on cultural and spiritual practices: • Connection to the lands and water; • Governance systems and trade and barter between Nations; • Potential impacts to shoreline based cultural sites from increased vessel wake; • Disturbances that may displace members from one First Nation practicing Aboriginal rights within their traditional territory into the territory of another First Nation; • Cumulative effects related to the above.
The Project is expected to affect a moderate portion of the Penelakut traditional territory. The exercise of rights should still be able to continue, although Penelakut may lose or have to modify preferred options for exercising rights.
Penelakut has also raised concerns with the seriousness of the potential adverse impact the Project may have on the ability of Penelakut to harvest crabs at the Project location. Specifically, the Agency understands that Penelakut has stated that the Project area is one of the only areas within Penelakut claimed territory where Penelakut has confidence to eat crab organs due to concerns about contamination in the rest of their claimed traditional territory. The Agency expects that the environmental and cumulative effects of the Project and marine shipping associated with the Project on the Penelakut’s current use of crab for traditional purposes will be assessed by the Review Panel. The Agency encourages you to bring this
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concern to the attention of the Review Panel during the current comment period, which is open until October 14, 2016.
As the EA progresses, information related to potential impacts of the Project on Penelakut’s Aboriginal rights may further inform the depth of consultation assessment. For instance, the Crown would appreciate receiving the following information regarding your concerns about potential impacts to title: 1. What portion or percentage of Penelakut territory could be affected by the Project and marine shipping associated with the Project? 2. How could the Project and marine shipping associated with the Project change or restrict future land/water uses by the Nation? 3. How could the Project and marine shipping associated with the Project change the Nation’s ability to derive future economic benefits from the land or water? 4. Could the Project and marine shipping associated with the Project change your Nation’s relationship to the land or water, in a way that is incompatible with aspects of your title claim? 5. Are there impacts from the Project and marine shipping associated with the Project which could impact your Nation’s traditional governance methods or structures? 6. Could there be impacts from the Project and marine shipping associated with the Project to key or unique aspects of your Nation’s cultural customs, traditions or practices?
Request for Clarification on Cumulative Effects on Penelakut Interests
In your letter of January 4, 2016 to Vancouver Fraser Port Authority, Penelakut noted concerns about the information provided by the Port regarding its assertion that the Project will not result in any adverse effects that mitigation would not resolve on Penelakut’s harvesting and use of the Roberts Bank area. The Review Panel has asked Penelakut to provide information regarding information you believe is missing from the proponent’s submissions. The Agency encourages you to make use of the panel process to explain what additional information you feel is needed for the environmental assessment. The Agency also encourages Penelakut to provide information to the Review Panel about any potential impacts to Penelakut’s rights, which could include possible cumulative effects to the exercise of your fishing and crabbing rights.
As you are aware, the proponent has predicted that there will not be any residual adverse effects from the Project or marine shipping associated with the Project for Penelakut on any of the components of section 5(1)(c) of the Canadian Environmental Assessment Act, 2012 (CEAA 2012). If Penelakut is of the opinion there would be residual environmental effects from the Project or marine shipping associated with the Project on any of the components of section 5(1)(c), such as residual effects on your current use of crab for traditional purposes, you are encouraged to notify the Review Panel. If the Review Panel is of the opinion that there would be residual effects from the Project, it may direct the proponent to conduct an assessment of the cumulative effects of the Project or marine shipping associated with the Project. As such, you are encouraged to inform the Review Panel of your concerns in this regard.
Additional Issues
In addition to the issues addressed above, a number of additional issues from our meeting on January 27, 2016 required follow-up.
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You requested the Agency provide feedback to Vancouver Fraser Port Authority regarding Penelakut’s concerns about not having enough funding to participate meaningfully in the environmental assessment process. The Agency has provided the requested feedback and Vancouver Fraser Port Authority has been encouraged to work with all Indigenous groups, including Penelakut, to help resolve any capacity challenges the groups may have with respect to the groups' involvement in the environmental assessment and consultation process for the Project and associated marine shipping.
You also requested that the Agency post specific letters from Penelakut on the EA registry site. The requested letters are posted as documents #395 and #396 on the registry. If there are any other letters or correspondence you would like posted to the registry or if you would like this letter to be posted on the registry, please let me know.
With respect to your request to have an Indigenous representative or someone with expertise relating to Indigenous issues on the Review Panel, the Agency reviewed the candidate you nominated. While the Agency did not recommend to the Minister that the candidate be appointed to the review panel, we are confident that the members of the Review Panel have relevant experience with respect to Indigenous issues and other potential effects from the Project and marine shipping associated with the Project. The biographies of the Panel members can be found at http://www.ceaa-acee.gc.ca/050/document- eng.cfm?document=114586.
The Agency would like to continue our discussion with you in our upcoming meeting on September 22, 2016 about what Penelakut views as a meaningful consultation process and your request to continue with consultation meetings with the Crown during the panel phase of the environmental assessment. I also would like to better understand your request in the July 27, 2016 letter regarding section 5 of CEAA 2012 and its role in the consultation process before responding to your concerns in the letter.
I look forward to our upcoming meeting and I encourage you to review the material on the public registry site for the Project regarding how the Crown is integrating consultation into the EA process (please see documents #133 and #134).
Thank you for your ongoing participation in the environmental assessment of the Project, and do not hesitate to contact me should you have any questions or concerns.
Sincerely
Analise Saely
Cc: Ruth Sauder, Penelakut Jennifer Griffith, Legal Counsel Penelakut Bryan Nelson, Vancouver Fraser Port Authority David Grace, BCEAO
Attachment #1- Updated Consultation Workplan for Penelakut
www.ceaa-acee.gc.ca www.acee-ceaa.gc.ca 5 Penelakut Tribe PROPOSED CONSULTATION WORK PLAN Environmental Assessment of the Proposed Roberts Bank Terminal 2 Project September 15, 2016
1. Introduction
This proposed Aboriginal consultation work plan is intended to guide federal Crown-Aboriginal consultation activities during the environmental assessment of the proposed Roberts Bank Terminal 2 Project (the Project). It communicates the federal Crown’s objectives for consultation, the proposed structure for integrating consultation into the environmental assessment process, and the proposed consultation activities for the Penelakut Tribe. This document is intended to be a “living document” that will be updated by the Canadian Environmental Assessment Agency (the Agency) and reviewed with the Penelakut Tribe regularly during the environmental assessment of the proposed Project.
2. Description of the Proposed Roberts Bank Terminal 2 Project
Vancouver Fraser Port Authority wants to construct and operate a new three- berth marine container terminal located at Roberts Bank in Delta, British Columbia, approximately 35 kilometres south of Vancouver (Figure 1). The proposed Project would provide an additional 2.4 million units of container capacity at Roberts Bank per year. The full project description and Environmental Impact Statement (EIS) can be downloaded at www.ceaa-acee.gc.ca (Registry reference number 80054).
For additional information on the proposed Roberts Bank Terminal 2 Project, we encourage you to contact Vancouver Fraser Port Authority (the proponent) at:
Bryan Nelson Manager, Project Development – Aboriginal Consultation, Vancouver Fraser Port Authority 100 The Pointe, 999 Canada Place Vancouver, BC Canada V6C 3T4
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Figure 1: Regional Setting for the Proposed Roberts Bank Terminal 2 Project
3. Marine Shipping The potential effects on the environment of container ships coming and going from the proposed terminal through Juan de Fuca Strait and the Strait of Georgia will be taken into account during this environmental assessment (see figure 2 below). This is referred to in the Review Panel’s Terms of Reference as “the environmental effects of marine shipping associated with the Project which is beyond the care and control of the proponent and within the 12 nautical mile limit of Canada’s territorial sea.”
The federal government will use the environmental assessment process to the extent possible to consult with Aboriginal groups whose Aboriginal rights may be impacted by the Roberts Bank Terminal 2 Project and by marine shipping associated with the Project.
The government would like to understand concerns Penelakut Tribe may have about any increase in marine shipping in your territory resulting from the Roberts Bank Terminal 2 Project (see Figure 2). Penelakut Tribe is encouraged to provide to the Review Panel for its consideration information regarding any potential or established Aboriginal or Treaty rights that may be impacted by marine shipping associated with the Project, what those impacts may be and suggestions to avoid or reduce impacts from your Nation.
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Figure 2: Marine Shipping Associated with the Roberts Bank Terminal 2 Project
4. Aboriginal Groups The following is a list of Aboriginal groups that have been identified by the federal government for consultation related to the environmental assessment, on the basis that existing or potential Aboriginal or Treaty rights and interests may be affected by the Project and marine shipping associated with the Project. This list may change as more information becomes available throughout the process. The Crown will consult with any Aboriginal groups who have asserted or established Aboriginal or Treaty rights which may be impacted by the Project and marine shipping associated with the Project.
Aboriginal groups identified by the Agency to be consulted on the Project include:
• Stó:lō Tribal Council (Seabird Island First Nation, Scowlitz First Nation, Soowahlie Band, Kwaw'Kwaw'Apilt First Nation, Kwantlen First Nation, Shxw'ow'hamel First Nation, Chawathil First Nation, Cheam Indian Band); and • Stó:lō Nation (Aitchelitz First Nation, Leq’a:mel First Nation, Matsqui First Nation, Popkum First Nation, Skawahlook First Nation, Skowkale First Nation, Shxwha:y Village, Squiala First Nation, Sumas First Nation, Tzeachten First Nation, Yakweakwioose Band).
Aboriginal groups identified by the Agency to be consulted on the Project and marine shipping associated with the Project include:
• Tsawwassen First Nation; • Musqueam First Nation;
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• Semiahmoo First Nation; • Tsleil-Waututh Nation; • Stz’uminus First Nation; • Cowichan Tribes; • Halalt First Nation; • Lake Cowichan First Nation; • Lyackson First Nation; • Penelakut Tribe; • Métis Nation British Columbia; • Tsawout First Nation; • Pauquachin First Nation; • Tsartlip First Nation; • Tseycum First Nation; • Malahat First Nation;
Aboriginal groups identified by the Agency to be consulted on marine shipping associated with the Project include:
• Beecher Bay Indian Band (Scia'new First Nation); • Esquimalt Nation (No'ilung Si'em 'i' sche'le'chu); • Songhees First Nation; • T'sou-ke First Nation; • Pacheedaht First Nation; • Ditidaht First Nation; and • Maa-nulth First Nations (Huu-ay-aht First Nations, Ka:'yu:'k't'h'/Che:k'tles7et'h First Nations, Toquaht Nation, Uchucklesaht Tribe and Ucluelet First Nation).
5. Federal Crown’s Consultation Objectives The federal Crown has identified the following as key objectives to achieve throughout the consultation and environmental assessment process: • To establish a positive and productive working relationship with Aboriginal groups during the environmental assessment and regulatory phases; • To communicate and listen to potentially adversely impacted Aboriginal groups about the Project or marine shipping associated with the Project and the way in which potential or established Aboriginal or Treaty rights and related interests may be affected throughout the environmental assessment and regulatory phases;
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• To create an environment that facilitates the identification of potential or established Aboriginal or Treaty rights and related interests that may be adversely impacted by the Project or marine shipping associated with the Project so that the proponent can consider options to avoid, mitigate or accommodate adverse impacts to those Aboriginal or Treaty rights, where appropriate; • To work with Aboriginal groups to identify potential effects of changes to the environment from the Project and marine shipping associated with the Project on: o current use of lands and resources for traditional purposes; o health, cultural and socio-economic conditions; o potential or established Aboriginal or Treaty rights; and.
• To work with Aboriginal groups to identify and to consider options for avoiding or mitigating adverse impacts where appropriate. • To respond to specific requests by potentially impacted Aboriginal groups, address topic-specific issues related to the Project and marine shipping associated with the Project, if possible, and to gather input from potentially impacted Aboriginal groups regarding their concerns about the Project and marine shipping associated with the Project; • To cooperate with the Province of British Columbia on Aboriginal consultation; • To guide the proponent to gather information about potential adverse impacts from the Project and marine shipping associated with the Project on established or potential Aboriginal or Treaty rights; and to work with the proponent to avoid or mitigate as many impacts as possible through revisions during the project planning stage; • To work with the Penelakut Tribe and the proponent to respond to specific questions and requests regarding issues raised related to the Project and marine shipping associated with the Project; and • To listen carefully to concerns raised by Penelakut Tribe and meaningfully consider your feedback, perspectives and issues in order to inform decision- making.
6. Penelakut Tribe Consultation Objectives
From Penelakut: - To ensure that the parties have a mutual understanding of the asserted rights issue, the strength of the claims of rights and the potential way in which the Project may infringe those rights. - To develop a consultation process that will ensure that the potential impacts to Penelakut Tribe’s aboriginal rights flowing from Canada’s decision(s) relating to RBT2 can be addressed through a meaningful consultation process.
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7. Integrating Consultation into the Environment Assessment
Table 1 provides a description of the main steps in the federal environmental assessment process and a description of how the federal Crown proposes to integrate consultation activities into those steps. This table describes what the Penelakut Tribe should receive, have access to or expect from the Agency, on behalf of the federal Crown, and what the Penelakut Tribe could share and provide during the environmental assessment process.
Environmental assessments conducted by review panel are subject to timelines under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). An environmental assessment by review panel must be completed and an environmental assessment decision statement issued by the Minister of the Environment within 24 months of the date of the referral of the project to a review panel. This timeline does not include the time taken by the proponent to provide any information that is requested by the Agency, the review panel or the Minister of the Environment.
The Roberts Bank Terminal 2 Project is currently in the 24 month period. The Minister of the Environment referred the project to review panel on January 7, 2014. Consultation activities with Penelakut Tribe, as proposed, are in keeping with these timelines.
While information and concerns relating to many issues associated with the potential impacts of the Project and marine shipping associated with the Project may be brought forth and addressed during the various stages of the environmental assessment process, it may not be feasible to address all of these concerns through this process. Some issues and concerns may best be discussed and addressed in other ways, for instance, through the regulatory approvals process that may follow the environmental assessment.
Marine shipping beyond the care and control of Vancouver Fraser Port Authority will not be subject to conditions in the decision statement issued to Vancouver Fraser Port Authority by the Minister of the Environment under CEAA 2012, should the Project be authorized to proceed. However, inclusion of this matter within the environmental assessment for the Roberts Bank Terminal 2 Project will provide the federal government with information on the potential effects of increased marine shipping for use by programs and activities within federal jurisdiction.
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Table 2: Integrating Consultation into the Environmental Assessment (Adapted from the BC First Nations Environmental Assessment Technical Working Group Toolkit Workshop)
Environmental Description of the Environmental What the Penelakut Tribe should receive, What the Penelakut Tribe may Assessment Step Assessment Step/Phase have access to or expect FROM the provide TO the federal Crown/ federal Crown Review Panel (or DO) Government The Agency assesses the • Opportunity to review and comment on • Comments on the marine shipping Completeness completeness of the proponent’s the completeness of the proponent’s addendum and the supporting Review on the Marine marine shipping addendum. marine shipping addendum and studies and the completeness of the Shipping Addendum supporting studies; proponent’s responses to your The marine shipping addendum • Opportunity to review and comment on concerns; identifies potential adverse the completeness of the proponent’s • Provide your thoughts on the environmental effects of marine responses to issues raised by Aboriginal accuracy of the proponent’s shipping associated with the groups, the public, federal and provincial information about issues you have Project, including the agencies. raised and your opinion on any environmental effects of • Written response outlining how your proposed ways of addressing those malfunctions or accidents and any comments on the completeness of the impacts. cumulative environmental effects, EIS were considered. the significance of those effects, suggested mitigation measures and the possible requirements of any follow-up program that may be required. The review panel assesses the • Provision of information on panel process; • Decide if you want to participate in sufficiency of the EIS as required • Directions on how to participate in the the panel sufficiency review process. Panel Environmental by the Terms of Reference. comment period on the EIS (provided • Provide your thoughts on the Impact Statement directly by the review panel); accuracy of the proponent’s (EIS) sufficiency • Notice of public consultation opportunities information about issues you have review and public hearings held by the panel raised and your opinion on any (provided directly by the review panel). proposed ways of addressing those impacts.
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Environmental Description of the Environmental What the Penelakut Tribe should receive, What the Penelakut Tribe may Assessment Step Assessment Step/Phase have access to or expect FROM the provide TO the federal Crown/ federal Crown Review Panel (or DO) • Decide if you want to present your The review panel will hold a public • Directions on how to request to views to the review panel; hearing in a manner that offers any participate in the hearing and confirmation • Provide information in writing to the Public Hearing interested party an opportunity to of participation, if permitted by the review review panel and, if permitted by the participate in the environmental panel). review panel, in person, on any assessment. issue within the panel’s mandate. Panel Report The review panel submits its report • Opportunity to review and comment on • Comments on the panel report. to the Minister of the Environment, the panel report. which includes its conclusions, recommendations and rationale regarding the significance of the adverse environmental effects, mitigation measures, and follow up report. The panel may include accommodation measures related to any potential adverse impacts on potential or established Aboriginal or Treaty rights.
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Environmental Description of the Environmental What the Penelakut Tribe should receive, What the Penelakut Tribe may Assessment Step Assessment Step/Phase have access to or expect FROM the provide TO the federal Crown/ federal Crown Review Panel (or DO) Minister’s EA Taking into consideration the report • An opportunity to be consulted during the • Comments on draft potential Decision of the review panel, the Minister of development of potential conditions conditions related to the Project. the Environment determines related to the Project to be included in the whether the project is likely to decision statement, should the project be cause significant adverse allowed to proceed; environmental effects, taking into • Notification of the Minister’s EA decision. account mitigation measures. If significant adverse environmental effects are likely, the federal Cabinet decides whether these effects are justified in the circumstances. A decision statement is issued that sets out the decision and, as necessary, associated conditions with which the proponent must comply should the Project be allowed to proceed. Throughout the Environmental Assessment • Exchange of information, notifications and • Share information regarding the correspondence; potential adverse impacts of the • Opportunity to provide traditional project on your Aboriginal rights and knowledge about the environment and traditional uses; possible effects to be used in the • Provide any traditional knowledge assessment; that may improve the environmental • Opportunity to identify issues to be assessment; addressed, as appropriate, through • Provide recommendations on how to consultation on all aspects of the avoid, mitigate or compensate for environmental assessment; impacts to your Aboriginal rights; • Opportunity to collaborate to identify • Request one-on-one meetings with potential adverse impacts to Aboriginal federal representatives to discuss rights, traditional uses, and generating your issues of concern; options for changes to the project plan or • Request reasons for federal Crown other forms of accommodation; decisions. • Opportunity to collaborate to generate options for changes to the project plan or 9
Environmental Description of the Environmental What the Penelakut Tribe should receive, What the Penelakut Tribe may Assessment Step Assessment Step/Phase have access to or expect FROM the provide TO the federal Crown/ federal Crown Review Panel (or DO) other forms of accommodation; • Consideration of changes to proposed government action (e.g. attaching terms and conditions to permits or authorizations, where possible and appropriate); • Written reasons for federal Crown decisions when requested; • Opportunity for additional meetings with the federal Crown to address concerns as appropriate.
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8. Federal Agencies Roles and Responsibilities Environmental assessment type: Environmental assessment by review panel
Potential decisions by federal agencies (information to be confirmed as environmental assessment progresses):
Federal Agencies Roles and Responsibilities Federal Agency Roles and Responsibilities Canadian Environmental Crown Consultation Coordinator Assessment Agency responsible for coordinating federal Name: Analise Saely Crown consultation within the Email: Analise.Saely@ceaa- environmental assessment process. acee.gc.ca
Environment Canada Federal Authority responsible for Name: June Yoo Rifkin Species at Risk Act (SARA), Section Email: 73(1) or 74 and Canadian
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Federal Agency Roles and Responsibilities • address liability and compensation for damages caused by ship source oil pollution. Fisheries and Oceans Canada Federal Authority responsible for Name: Tessa Richardson Fisheries Act, Section 35(2)(b) Email: Tessa.Richardson@dfo- Authorization and for Section 73(1) or mpo.gc.ca 74 of the Species at Risk Act (SARA)
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