Trans Mountain Expansion Project NEB Hearing Order OH-001-2014

Government of Canada Intervenor Information Request (IIR) 31 to:

Okanagan Nation Alliance (Lower Similkameen Indian Band, Indian Band, Upper Similkameen Indian Band)

To: Pauline Terbasket Executive Director Nation Alliance 101-3535 Old Okanagan Hwy. Westbank, BC V4T 3L7 cc: Brenda Gaertner, Legal Counsel, Mandell Pinder LLP; and James Pepper, Authorized Representative, Okanagan Nation Alliance; Peter Waardenburg, Authorized Representative, Okanagan Nation Alliance1

All other intervenors and Trans Mountain Pipeline ULC

Preamble:

As you are aware, NRCan’s Major Projects Management Office (MPMO), is serving as the Crown Consultation Coordinator for the Trans Mountain Expansion Project (the Project). As Crown Consultation Coordinator, MPMO is using the “Intervenor Information Request (IR) to other Intervenors” round to submit a summary of the concerns and issues that the Okanagan Nation Alliance2 has raised to date in the regulatory review of the Project.

1 Arising from the Crown’s interactions with the Okanagan Nation Alliance, the Crown been informed that Peter Waardenburg (in place of James Pepper) should be included in correspondence regarding the Trans Mountain Expansion Project and its review. 2 The Crown is aware that as of June 2015, the Okanagan Nation Alliance is participating in the NEB hearing as a single Intervenor representing the eight member communities of the Okanagan Nation (; ; Lower Similkameen Indian Band; ; Upper Similkameen Indian Band; ; ; and the Confederated Tribes of the Colville Reservation). This information request is seeking feedback specifically from the Lower Similkameen Indian Band, Penticton Indian Band and the Upper Similkameen Indian Band as these collective Aboriginal rights bearing communities are not

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Using Issues Tracking Tables (ITTs), we are seeking feedback from you on the completeness and accuracy of the concerns and issues you have raised, and your views on concerns and issues that may have not yet been addressed by proposed mitigation measures or proponent commitments to this point in the process. The Crown intends to use your feedback to further refine its current understanding of the potential adverse impacts of the Project on your community’s interests, including any adverse impacts the Project may have on your potential or established Aboriginal and treaty rights.

In your review of the draft ITT (attached), please note that the Crown has attempted to document procedural concerns and the substantive issues raised by Aboriginal group Intervenors. However, the ITT is not intended to be an exhaustive list of all issues currently submitted to the NEB for its consideration as part of the regulatory review of the Project, rather, it is intended to summarize and reflect the Crown’s current understanding. Nor does the ITT provide a comprehensive listing of all proponent commitments or proposed mitigation filed with the NEB to date.

The Crown will continue to rely on the NEB process, to the extent possible, to identify whether your concerns or issues have been addressed, partially addressed or not addressed. ITTs will be an integral component of post-hearing (Phase III) consultation with Aboriginal groups, as the information they contain will provide the basis for discussions to determine what outstanding concerns or issues remain. The ITTs will also be used in the drafting of the Crown Consultation Report which will help to inform Governor in Council decision making for the Project.

The NEB has also requested comments on its draft standard Terms and Conditions for the Project, and will be seeking comments on additional draft conditions to be released on July 29, 2015. The Crown looks forward to reviewing your comments to the NEB on these draft conditions, to build upon its current understanding of potentially outstanding issues and concerns and potential mitigation measures.

Questions:

The Crown invites your review of the enclosed draft ITT and for convenience, welcomes responses to be provided within the ITT columns or additional rows as follows:

31.1. Aboriginal group response to ITT column #1: Key Issue (specific concern or potential impact to Aboriginal rights and interests)

otherwise registered as individual Intervenors in the NEB process, and the Crown recognizes a duty to consult with each of these groups in respect of the Project. A separate IR has been filed for the Upper Nicola Band, however the Crown recognizes that these groups are working together to have their interests, issues and concerns raised and considered in the review of the project.

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Please briefly indicate in the adjacent column, whether the key issue or concern expressed in ITT column #1 generally reflects the views of the Okanagan Nation Alliance and if not, please suggest revised language; alternatively, additional rows may be added to the ITT to reflect an issue or concern not adequately described in the ITT.

31.2. Aboriginal group response to ITT column #3: Mitigation: Proponent Commitments and/or Response

Please briefly indicate in the adjacent column, whether the proposed mitigation measure or proponent commitment and/or response (as applicable) is considered by the Okanagan Nation Alliance to be an effective means of addressing the key issue or concern raised. If not, please suggest any additional mitigation or commitments that would more fully or appropriately address or accommodate the concern. (Please note that Proponent mitigation measures/commitments continue to evolve and consequently the list provided below is draft only and may not be comprehensive.)

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Okanagan Nation Alliance’s Response:

Given time and capacity restraints, the Okanagan Nation Alliance (ONA) has responded to the Crown’s Issue Tracking Table (ITT) to the extent feasible at this time. In doing so, ONA emphasizes following:

1. Canada’s ITT, together with ONA’s response, is not complete and cannot be relied upon as a comprehensive summary or listing of TMEP impacts, effects, infringements, concerns, issues or possible mitigations or accommodations identified by the proponent, the ONA or otherwise.

2. Canada’s ITT failed to accurately identify that ONA represents Title and Rights, which are the collective rights held by the Okanagan Nation, and not only Penticton, Upper Similkameen and Lower Similkameen Indian Bands Title and Rights.

3. Canada’s ITT failed to accurately present a listing of impacts and effects which was consistent with the concerns raised to date by the ONA, including those outlined by Upper Nicola (UNB), which is a member of the ONA. While in some circumstances Canada’s ITT referenced certain impacts identified by ONA/UNB, in other circumstances it did not. It is unclear on what basis Canada chose to include or exclude in its ITT the issues of concern raised by ONA/UNB.

4. Given limited time and capacity, ONA’s response to Canada’s ITT in this Information Request does not comprehensively include all concerns, issues, potential mitigation, etc. Rather, to the extent feasible, the ONA has responded to those issues and concerns that Canada has listed in its ITT. There are more and other issues and concerns which may be identified during ONA’s ongoing assessment of TMEP, including reviewing the Draft Conditions, Final Argument before the NEB and upcoming Crown consultation.

5. Canada’s ITT and ONA’s response does not present the listing of issues and concerns in any ranking of importance.

6. Although mitigation options have been identified in the ITT, the ideas presented by the ONA are preliminary in nature and do not reflect the ONA’s view on the sufficiency or adequacy of the mitigation to address or accommodate the potential impacts, effects, infringements, risks, etc.

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7. Completing an ITT within the consultation process between the ONA and Canada is better served outside the NEB’s IR process. This would have allowed an iterative, collaborative approach to creating and developing the ITT without the restrictions associated with the NEB’s process, including the short timeframes for response.

8. For all of the reasons set out herein, in order to achieve a reliable ITT that could provide a basis for consultation, the ONA and Canada must return to this ITT as part of the upcoming consultations between the ONA and Canada. It will be more effective and efficient to collaboratively finalize the ITT during the upcoming consultation process between the ONA and Canada. The ONA seeks Canada’s commitment to do so.

9. The ONA’s review and assessment of potential impacts and effects of TMEP is ongoing. The ONA will continue to identify whether there are further potential measures, conditions or commitments, including after review of the NEB’s Draft Conditions, in its final arguments to the NEB, and in the upcoming Phase III consultations with the Crown.

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Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. Cultural and Social Impacts The Okanagan Nation Alliance (ONA) is There is a deep connection between the Syilx Trans Mountain has facilitated TLU studies with This mitigation does not address the potential for damage concerned about disturbance or loss to people and their land. The people were given potentially affected Aboriginal communities, to the Okanagan relationship to the land and the plants Syilx way of life and for current and a responsibility to take care of the land and including ONA members, to gather data for the and animals resulting from pipeline related activities in future generations of ONA members. For the plants and animals, as is told through environmental and socio-economic assessment. the area local to where the cultural practices occur. example, on the north side of Nicola Lake, captikwl of the Four Food Chiefs. It is this An environmental education program (Volume 6A) Opportunities to exercise the relationship will be near the area of the pipeline, ONA relationship, including their way of life and will be developed and implemented to ensure that impacted by TMEP. Limited opportunities to exercise the members describe climbing the hills and use and occupancy that is threatened by the all personnel working on the construction of the relationship can alter the practice of cultural activities spending time in the area, as evidenced impacts of the pipeline. Project are informed of the location of known resulting in changes to unique cultural expressions that by the pit houses and pictographs housed sacred sites and burial sites. All sensitive resources may affect Okanagan cultural integrity now and into the in a big rocky area where members still identified on the Environmental Alignments Sheets future. The relationship to the land, plants and animals come to gather. Customs and teachings (Volume 6E) and environmental tables within the and the sacredness of place will likely not be have come from this area. Increased immediate vicinity or the right-of-way will be appropriately understood through data and site locations. access and pipeline accidents are clearly marked before the start of clearing. How to mitigate or accommodate such impacts and loss concerns in relation to these special In the event that previously unidentified sacred needs to be explored directly with Upper Nicola and ONA. places and cultural uses, including lack of sites are discovered during clearing or construction Increased knowledge of the location of sacred sites, respect and protocol shown for land, measures outlined in the Traditional Land Use Sites including burial and other cultural sites by non- water, resources and cultural/spiritual Discovery Contingency Plan (Appendix B of Volume Okanagan’s may jeopardize the sites themselves as sites.3 6B) will be implemented. associated protocol will not be taught. It may not be Further discussion is provided under traditional appropriate, for cultural reasons, to share specific site land and resource use in Section 7.2.2.4 related protocols in the environmental and socio- economic assessment.

3 Upper Nicola Indian Band Written Intervenor Evidence (A70333) 4 Trans Mountain Response to Upper Nicola Indian Band Oral Traditional Evidence (A4H1X1) 000115-0026.0001 00258325.5 6

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. Methodology, Process and Consultation The ONA does not believe that the NEB Yes. N/A Impact analysis methodology should be developed from process is an appropriate venue for the the Okanagan perspective and results analysis conducted Crown to discharge its duty to consult, by the Okanagan. The results and findings of the and as an example, has expressed Okanagan Assessment Process will inform whether or not concern that proponent has failed to a project can proceed. adequately respond to Information Requests, particularly on the subject of If the Crown and/or MPMO is conducting a strength of impacts to fish and fish habitat, pipeline claim analysis which may be used to assess Upper crossings, and environmental emergency Nicola/Syilx aboriginal title and rights, then prior to plans, impacting ONA members’ ability to relying upon such analysis, the Crown must commit to assess potential impacts to their title and share this strength of claim assessment with Upper Nicola rights. 5 and ONA and provide Upper Nicola and ONA the In addition, ONA is concerned that opportunity to gather and present further information on Canada is conducting strength of claim our title and rights. assessments without directly engaging with First Nations.6 Cumulative Effects Concerns expressed regarding impacts of Yes. There are numerous concerns regarding Potential Project-related cumulative effects will be ONA/UNB Watershed fragmentation analysis shows intact on-going development in Syilx Territory, cumulative effects that need to be itemized mitigated with implementation of the following areas that need protection and highly impacted areas including impacts to physical, emotional, when considering this concern. design and construction measures: that require regeneration of natural vegetation. Critical mental, cultural and spiritual well-being • align the proposed pipeline corridor to follow habitats and access routes for wildlife are increasingly and ecological impacts including from existing linear features such as pipelines and impacted by development on the land.

5 Upper Nicola Oral Traditional Evidence [paragraph 8801] (A4F1L1) 6 ONA letter to Minister Rickford (5/22/2015) (A4Q1S7) 000115-0026.0001 00258325.5 7

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. Mountain Pine Beetle and climate disturbed areas such as facilities/clearings to Regeneration of natural vegetation solutions or other change.7 the extent practical; and restoration projects are presently being identified by ONA • encourage rapid regeneration of natural and UNB and will be part of ongoing work and vegetation. consultation. These areas could be in the Local Study Area and adjacent sub-watersheds and result in The Project’s contribution to cumulative effects restoration efforts to bring back healthier watersheds with reasonably foreseeable developments is within the project’s area. The Crown and Trans Mountain assessed in Section 8.0, including Project’s must commit to using this work to assess TMEP impacts contribution to cumulative effects on vegetation in and effects. Section 8.8. Mitigation measures are presented in the Pipeline EPP (Volume 6B).8 9 Mitigation plans for the potential cumulative effects of spills in UNB/Syilx Territory should also be developed and provided by Trans Mountain and the Crown. See further discussion below and in Upper Nicola’s response to the Crown’s ITT. Environmental Impacts Concerned about geohazards, erosion Yes. Trans Mountain assessed potential changes to the In addition to the mitigation proposed by Trans and hydrologic flow issues, acid rock project caused by the environment in Volume 5A Mountain, mitigation of construction related impacts to drainage and metal leaching.10 and 5B [Section 7]. Some mitigations measures slope features, including rock and soil disturbance should proposed include: default to full site restoration including, re-contouring, • ensure pipeline burial depths at watercourses ensuring naturalistic drainage patterns, including have taken into consideration flood events and subsurface drainage and aquifer/groundwater recharge, scouring of the bed so that risk to the integrity animal pathway restoration, and planting of native of the pipeline due to such events is minimal; vegetation.

7 Upper Nicola Indian Band Written Intervenor Evidence (A70333) 8 Application Volume 6B Section 8.0, 8.8 9 Trans Mountain Response to Upper Nicola Indian Band Oral Traditional Evidence (A4H1X1) 10 Upper Nicola Indian Band Written Intervenor Evidence (A70333) 000115-0026.0001 00258325.5 8

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. • avoid known problem areas; • employ trenchless crossing techniques; • use of thicker walled pipe to prevent damage from scouring and erosion; and • assess the erosion hazard prior to the commencement of rough and final clean-up.

This assessment, to be conducted by Trans Mountain’s Inspector(s) in consultation with the Construction Manager, will consider topography, degree of disturbance, soil erodability, snow depth, access limitations, timing constraints, and the likely schedule for rough clean-up, final clean-up and seeding. Request assistance in conducting the assessment, if warranted, from Trans Mountain’s Environmental Manager, or the Geotechnical, Soil or Reclamation Resource Specialist.11 Concerned about impacts on water, Yes. Trans Mountain agrees that measures to protect There are significant gaps in the assessment of watersheds and water crossings including sensitive environmental areas of importance such watersheds and water crossings potentially impacted by wetlands, drainages, groundwater, as water bodies and riparian areas are critical. TMEP. See Upper Nicola’s response. drinking water and everything that relies Trans Mountain takes a multi-layered approach to on those watersheds such as fish, wildlife, pipeline safety, including adopting measures such In addition, watercourse crossings are not the only birds, deer, moose, etc.12 as strategically placed pipeline valves near concerns related to impacts to water. Subsurface waterways and trenchless river crossings at some drainage patterns along the pipeline route have the locations. potential to impact the natural flow of water that has created the conditions that provided for animals etc., to

11 Application Volume 5A [Table 7.10-1] 12 Upper Nicola Indian Band Written Intervenor Evidence (A70333) 000115-0026.0001 00258325.5 9

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. Crossing methods specific to each watercourse will which Okanagan’s have rights and responsibilities. be determined in consultation with engineering and environmental specialists, as well as applicable Watercourse crossings should be developed with Upper regulatory authorities. Nicola and Okanagan Nation Alliance/Okanagan Crossings of wetlands and watercourses will be membership to ensure that site specific measures are planned during suitable ground and weather incorporated based on priority of watersheds for various conditions with consideration for sensitive fish and uses by Okanagan people, including utilizing the UNB TUS. wildlife timing windows. Additionally, water quality will be monitored during all in-stream activity. Each Use of construction equipment possesses threats to watercourse will be approached correctly so the watercourses through potential spills, introduction of cumulative effects of changes to all the crossings invasive species and increased pollution. Mitigation for and the surrounding watershed will be limited.13 these activities is not discussed.

Construction noise has the potential to impact wildlife and fish behaviour patterns. It is not clear how the best wildlife timing windows will be chosen, and how the many different types of species will be considered. Mitigation for these activities is not outlined.

What objectives/standards will be required for water quality during construction? What water quality parameters will be measured? There should be no change in water quality during construction activities. Health and Human Safety Concerned about living with the ongoing Yes. N/A There remain significant uncertainties in knowledge and uncertainty of a potential spill.14 experience related to pipeline accidents and

13 Trans Mountain Response to Upper Nicola Indian Band Oral Traditional Evidence (A4H1X1) 14 Upper Nicola Indian Band Written Intervenor Evidence - Harvey Matthew McLeod Affidavit (A70333) 000115-0026.0001 00258325.5 10

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. malfunctions, including limited effectiveness of current technologies to identify, contain and recover crude oil. The only way the proponent could adequately address this issue would be to cancel the project altogether. Impacts to Aboriginal Rights (asserted or established) Through the Syilx Nation Declaration of Yes, except the Okanagan Nation Declaration N/A Syilx title and rights need to be addressed. Not directly July 31, 2014, the ONA asserts was affirmed and signed by members of the addressing Syilx title and rights while engaging in unextinguished Aboriginal Title and Okanagan Nation in August 1987. consultation violates the honour of the Crown that is the Rights to lands and resources within the standard in the consultation process. Okanagan (Syilx) Territory which is transected by the proposed pipeline.15 16 As members of the Okanagan Nation, the Yes. Except as explained above, ONA N/A Impacts to internal Syilx Governance and decision making ONA collective (including Penticton, represents the collective Syilx Title and arise from many aspects of TMEP, and many elements of Upper Similkameen and Lower Rights, and not only Penticton, Upper Okanagan societal governance. For example, the potential Similkameen Indian Bands) assert Similkameen and Lower Similkameen Indian inability of families to access food in their traditional governance rights over decisions Bands. areas may cause impacts to other families and traditional affecting the lands and resources within practices. Traditional protocols governing use of land their territory shared with member bands may not be able to be applied in the impact area. of the Okanagan Nation. Setting boundaries and protocols is important for ONA as they provide for good relations, and ensure fish, wildlife, berries and medicines are protected, honoured and respected.

As with other Okanagan Nations, the ONA

15 ONA Application to Participate (A3U5V6) 16 Upper Nicola Band-Okanagan Nation Alliance Letter to NEB 28 May 2015 (A4Q258) and Upper Nicola Band Written Evidence (A70333) 000115-0026.0001 00258325.5 11

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. collective groups actively exercise rights to fish (various species) and hunt deer, moose and other species as well as harvest food and medicinal plants and berries.17 Accidents and Malfunctions (marine/terrestrial) Concerns expressed about increased risk Yes, except that the impacts and effects of Trans Mountain control centre operators monitor The Okanagan Nation Alliance is very concerned with the of oil spills and industrial accidents, accidents and malfunctions must also be the pipeline 24 hours per day, 7 days a week, 365 risks of potential oil spills (large and small) in its Territory including inadequate knowledge of the specifically analyzed. See Upper Nicola’s days a year using a sophisticated leak detection and does not accept that the mitigation measures fate and behaviour of diluted bitumen, response. system as well as pressure and flow alarms. described by Trans Mountain will adequately address all adequacy and capacity of oil spill Operators are prepared to shut the pipeline down the risks of oil spills and associated impacts. response, appropriate mechanisms for immediately if there is any indication of a potential avoidance, mitigation and compensation problem on the pipeline. In the event of an Avoiding, mitigating and otherwise reducing the for impacts, and liability and emergency, Trans Mountain will immediately possibility of spills from TMEP requires considerable responsibility for damages and ecosystem mobilize all of the necessary resources to minimize follow up work. See Upper Nicola’s response to Canada’s recovery.18 19 20 its effect on the public and the environment. ITT relating to accidents and malfunctions. Trans Mountain has comprehensive spill response plans in place. These plans are constantly being Okanagan people value the land and all of its resources. updated to keep them current and are regularly The purity of the water and the land and the culture practiced through deployment exercises. While the exists through exercising their responsibilities. TM’S specific strategies used in response to a spill will Assessments to date have been inadequate in both vary depending on the circumstances, the primary assessing the risks of increased oil spills and accidents objectives in all cases are to ensure safety and to from TMEP and whether there is potential mitigation of minimize environmental damage. To ensure there the harm a spill. In addition to impacts to the

17 Upper Nicola Band Written Evidence (A70333) 18 Upper Nicola Indian Band Oral Traditional Evidence Presentation, Slide 7 (A4E9Q0) 19 Upper Nicola Indian Band Oral Traditional Evidence paragraphs 8820-8821, 8828 (A4F1L1) 20 Upper Nicola Indian Band Exhibit K - Project Impacts on Syilx Title and Rights (A4Q1S8) 000115-0026.0001 00258325.5 12

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. are sufficient funds to remediate a spill, Trans environment, there are impacts to the practice of Mountain is covered by insurance necessary to Aboriginal rights, including the damage of the rights and respond to all spills or releases from Trans responsibilities to the land as described in traditional Mountain pipelines and facilities. Trans Mountain cultural teachings. Canada must commit to adequate monitors the insurance program continuously, and assessment of the potential risks of TMEP, including makes annual adjustments as necessary to ensure accidents and malfunctions, and adequate identification adequate coverage.21 of any potential avoidance and mitigation measures.

Project Construction Phase Concerned about increased access into Yes. The objectives of the Traffic and Access Control Yes, and Okanagan land managers should be involved in the territory and the adverse effects of Management Plan will be accomplished by the construction reclamation prescriptions. equipment, machinery, ATVs during minimizing the development of access routes, construction and operations, in particular controlling public access along the construction regarding the proposed Kingsvale Pump right-of-way, selecting appropriate access routes Station 138 kV hydroelectric line.22 that cause the least disturbance to high quality, sensitive wildlife habitat, managing traffic on these routes and determining appropriate construction reclamation. Trans Mountain will work with applicable resource managers, traditional land and resource users to define locations where access control is necessary, and what type(s) of access control will be implemented.23 Concerned about destruction of lands, Yes. During construction, Trans Mountain will manage Not entirely. The development and implementation of food and medicinal plants from road access (human and predator) at slope changes, any measures to reduce access by humans must involve building, introduction of non-native crossings (i.e., watercourse, road, pipeline right-of- the UNB/ONA.

21 Application Volume 7 Section 7.9 22 Upper Nicola Indian Band Written Intervenor Evidence (A70333) 23 Trans Mountain Response to Upper Nicola Indian Band Oral Traditional Evidence (A4H1X1) 000115-0026.0001 00258325.5 13

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. species and use of herbicides on RoW, way and railway) and bends. Measures will be roads and construction sites.24 implemented to reduce access (human and UNB/ONA need further information and consultation on predator) along the pipeline right-of-way and will how predator access would be managed, as this may include using woody debris as rollback, and impact large predator movement in UNB/ONA territory planting trees and/or shrubs at select locations and thereby effect hunting and trapping by UNB/ONA along the pipeline right-of-way. Where rollback and members. coarse woody debris are needed for access management, erosion control and habitat Trans Mountain must commit to work with UNB/ONA to enhancement, the contractor will ensure that a develop and implement a Weed and Vegetation sufficient supply is set aside for this purpose during Management Plan that is specific to Upper Nicola/Syilx final clean-up. Habitat connectivity will be restored Territory. Trans Mountain must commit to work with by redistributing large-diameter slash (rollback) UNB/ONA to develop and implement a Pipeline and over select locations on the pipeline right-of-way Facilities EPP that is specific to Upper Nicola/Syilx (e.g., where high levels of coarse woody debris Territory. occur prior to construction), to provide cover and facilitate movement of wildlife.25

The Weed and Vegetation Management Plan (Appendix C of Volume 6B) for the Project will address non-chemical, cultural and chemical techniques for problem vegetation management along the construction right-of-way through recommendations of vegetation management procedures, which include timing considerations; select methods and equipment; and specific vegetation management procedures based on

24 Upper Nicola Indian Band Written Intervenor Evidence (A70333) 25 Trans Mountain Response to Upper Nicola Indian Band Oral Traditional Evidence (A4H1X1) 000115-0026.0001 00258325.5 14

Draft Issues Tracking Table for TMX: Okanagan Nation Alliance (Lower Similkameen Indian Band, Penticton Indian Band, Upper Similkameen Indian Band)

Aboriginal Group Response: do proposed mitigation or Key Issue: specific concern or potential Aboriginal Group Response: does the key proponent commitments adequately address the issue? Mitigation: Proponent Commitments and/or impact to Aboriginal rights and interests issue as expressed here accurately reflect the If not, please suggest any additional mitigation or Response (draft /as noted by the Proponent) (as raised by Aboriginal group) issue? commitments that would more fully or appropriately address or accommodate the issue or concern. prevention, identification, monitoring, treatment thresholds, vegetation management options and post-treatment evaluation considerations. Trans Mountain will also: • Ensure that during construction no fuel, lubricating fluids, hydraulic fluids, methanol, antifreeze, herbicides, biocides, or other chemicals are dumped on the ground or into water bodies. In the event of a spill, implement the Spill Contingency Plan (see Appendix B) [Section 7.0].

Further discussion is provided under vegetation in Sections 5.9 and 7.2.9. Mitigation measures for vegetation are outlined in the Pipeline and Facilities EPPs (Volumes 6B and 6C).26

26 Trans Mountain Response to Upper Nicola Indian Band Oral Traditional Evidence (A4H1X1) 000115-0026.0001 00258325.5 15