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 <contact information removed> From: Jennifer Griffith <email address removed> Sent: November 29, 2016 4:04 PM To: Saely,Analise [CEAA] Cc: <email address removed> Subject: RBT2 and CEAA Registry 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 <contact information removed> <contact information removed> Phone: <contact information removed> Fax: Email: <email address removed> Website: www.aboriginal-law.com 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: <contact information removed> Fax: <contact information removed> - 2 - 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 <Original signed by> Encl. cc: Bryan Nelson, Port Metro Vancouver Via Email: <email address removed> cc: Chris Hamilton, B.C. Environmental Assessment Office Via Email: [email protected] cc: Jennifer Griffith, Donovan & Company Via Email: <email address removed> · Pene[af(ut rr'ri6e 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: <contact information removed> Fax: <contact information removed> 2 not seek to limit itself to a discussion of findings under s. 5 of the Canadian Environmental Assessment Act, 2012. Please provide a list of the project impacts Canada has identified to Penelakut Tribe Aboriginal Rights, including Aboriginal Title.