Hearing Order OH-001-2014 Trans Mountain Pipeline ULC (TransMountain) Application for the Trans Mountain Expansion Project (Project)
The Stó:lō Collective Written Submissions Table of Contents Introduction ...... 2 Part Two: Statement of Facts ...... 9 Who is the Stó:lō Collective? ...... 9 Part Three: Misrepresentations in Trans Mountain’s Final Argument ...... 12 Part Four: The Issues ...... 20 Part Five: Submissions ...... 21 (A) Procedural Issues ...... 21 (B) Deficiencies in the Proposed Terms & Conditions ...... 48 Part Six: Legal Argument ...... 55 (A) Public Interest ...... 55 (B) The Constitutional Framework ...... 57 (i) Aboriginal Rights ...... 57 (ii) Duty to Consult ...... 61 (iii) Obligation of Regulators to Act Consistently with the Constitution ...... 66 (iv) The Aboriginal Rights of the Members of the Stó:lō Collective ...... 67 (v) The NEB’s Mandate with Respect to Aboriginal Rights ...... 68 (vi) NEB’s Enabling Statutes Require Consideration of Aboriginal Rights ...... 68 Part Seven: Conclusions ...... 71 Findings Requested ...... 71
Stó:lō Collective Written Submissions January 12, 2016 Introduction 1) Trans Mountain has submitted an application for a certificate under s. 52 of the National Energy Board Act (NEBA).1 Trans Mountain is proposing to expand its existing pipeline system with approximately 981 km of new pipeline, new and modified facilities, such as pump stations, tanks and additional tanker loading facilities at the Westridge Marine Terminal in BC. The proposed Project is a reviewable Project under the Canadian Environmental Assessment Act (CEAA, 2012).2
2) Under the legislative scheme which now governs the review process, the NEB is tasked with writing a report that sets out:
the NEB’s recommendation, under s. 52 of the NEBA, on whether a certificate of public convenience and necessity should be issued for the proposed Project; and the NEB’s rationale, conclusions and recommendations relating to the environmental assessment of the Project under CEAA 2012.
3) The Stó:lō Collective submissions are with respect to: (1) the procedural aspects of the NEB public process and (2) the draft Terms and Conditions. The Stó:lō Collective submits that the NEB public process has been fatally flawed in that it has failed to capture the necessary information required for a positive recommendation. The public process did not succeed in obtaining sufficient, accurate information required to determine the effects of the Project on the members of the Stó:lō Collective.
4) The NEB process has failed to elicit the information required under the legislation governing the review of the proposed Project, including information required for a s. 52 National Energy Board Act decision and an environmental assessment under the Canadian Environmental Assessment Act, 2012, the Scope of Factors and the List of Issues, to determine if the proposed Project is likely to result in significant adverse effects with respect to the rights, title or interests of the members of the Stó:lō Collective.
5) Several decisions made by the NEB have had the effect of excluding relevant and important
1 National Energy Board Act, R.S.C. 1985, c. N-7. http://laws-lois.justice.gc.ca/PDF/N-7.pdf 2 Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 (CEAA 2012) http://laws- lois.justice.gc.ca/PDF/C-15.2.pdf
2 evidence. These include the decision to eliminate cross-examination, the decision to exclude evidence with respect to the existing pipeline and finally the decision to shut down the ability of Intervenors to add relevant and important evidence for a period of approximately 7 months prior to written submissions.
6) The members of the Stó:lō Collective would be profoundly impacted by the proposed Project. The Stó:lō Collective is composed of 13 Stó:lō Indian Act Bands located within the lower Fraser River watershed. Of these 13 Bands, 7 Bands (Aitchelitz, Skowkale, Shxwà:y, Soowahlie, Squiala, Tzeachten and Yakweakwioose) are members of the Ts’elxwéyeqw Tribe and have engaged with Trans Mountain in negotiations relating to a mutual benefits agreement, but to date have not achieved reached agreement. Two (2) Bands (Skwah and Kwaw-Kwaw-Apilt), members of the Pil’Ált Tribe, are also represented by the Ts’elxwéyeqw Tribe in these negotiations.
7) Trans Mountain’s existing pipeline and the proposed new pipeline route are within the traditional territory of the members of the Stó:lō Collective, directly adjacent to our reserve lands and in some cases may cross our reserve lands. The members of the Stó:lō Collective are not distant observers in this process. We will be living directly beside or, in some cases, on top of the proposed route.
8) The members of the Stó:lō Collective have past experience with the existing Trans Mountain pipeline and tank failures and communications regarding spills and health hazards, which caused undue stress and anxiety relating to the pipeline.
“I don’t think they care in the first place. The spills that have happened … we weren’t that important…they just left us, they did nothing for us… They don’t care, and they didn’t come to tell us what was happening… Our kids couldn’t go outside, they closed the school and wouldn’t tell us why… They just told us to stay inside… So we didn’t know. The sticker [they put on the door] just said to stay inside. Nothing else… They don’t care about us.”
Document ID#: A4L7AS - Written evidence - Appendix 3: Sumas Community meeting p. 63
“When we ask too many questions they say that it is safe and treat us like we are illiterate.”
Document ID#: A4L7AS - Written evidence - Appendix 3: Sumas Community meeting p. 54
“There have been a couple of spills in the last 10 years. In one the fumes were so bad, we had [to] evacuate our community, and some spent a couple days in hotel down the road. They way they handled
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3 it… no response for 6 hours… they did not do a good job of maintaining existing line. These are outstanding issues, like maintaining the facility. Before even reviewing [a new one].”
Document ID#: A4L7AS - Written evidence - Appendix 3, Stó:lō Traditional Knowledge Forum, p. 15.5
For more about concerns re past spills see: Document ID#: A4L7AS - Written evidence - Appendix 3: Sumas Community meeting pp. 2-76; Appendix 3, Stó:lō Traditional Knowledge Forum, p. 15.7
9) As a result of this past history with Trans Mountain, the Stó:lō Collective has little confidence in the proponent’s promises. Recent history surrounding Trans Mountain’s engagement with the Stó:lō Collective throughout this NEB process has not served in any way to lessen these concerns or anxieties. In fact, the opposite is true. Trans Mountain has shown a pattern of disregard for the interests of the members of the Stó:lō Collective. The proposed new pipeline is adding to fears and anxieties based on past experience. Nothing in this process has convinced us that this situation will likely change.
10) The Stó:lō Collective has fully participated in this hearing process. We did not come into the process with a pre-determined opinion. We wanted to get all of the information about the Project so that we could make an informed decision about whether or not we could support Trans Mountain’s application for a certificate of convenience and necessity.
11) The Stó:lō Collective has made every attempt to engage with Trans Mountain to obtain answers to our concerns. Our members’ interests were fully set out in the Integrated Cultural Assessment (ICA) document, which was provided to Trans Mountain on March 13, 2014
Integrated Cultural Assessment Report - Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 -Integrated Cultural Assessment (ICA)8
For evidence of date ICA provided to Trans Mountain see: Document ID# A4L7A8, Appendix 4(d), letter from M. Wealick to M. Knock, March 13, 2014 (p.7 -8).9
12) We participated in the Information Request (“IR”) rounds in an attempt to obtain some answers to our concerns. Trans Mountain consistently failed to respond substantively to our concerns. Their response to the majority of our concerns is to suggest that they are willing to
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4 talk about talking at some point in the future. This is not a commitment. Any commitments they have made are vague or have been lost from one part of the process to the next. Many of the few solid commitments made by Trans Mountain have already been broken.
For evidence of commitment to talk about talking see: Document ID# A4S3J8 Letter to NEB regarding commitments table - List of commitments #’s 3, 6, 11, 14, 15, 17, 28, 29 and 32. (pp. 2-4)10 For evidence of lost commitments see: Document ID# A4S3J8 Letter to NEB regarding commitments table; For evidence of broken commitments see: Document ID#: Appendix 4(f) p. 5911 and Document ID#: A4S7H3 - Appendix 7E letter to Stó:lō Collective March 31, 201512
13) The repercussions resulting from Trans Mountain’s failure to substantively respond to the concerns of the Stó:lō Collective were predictable. Because of their past experience with Trans Mountain, the Stó:lō Collective had little faith to begin with. Because of the flaws in this process and Trans Mountain’s behavior, they have lost what little faith they had in the NEB process and in Trans Mountain. Trans Mountain appears to believe that it can push through this Project over our lands and at our risk without ever seriously dealing with the Stó:lō Collective. Their actions have had the effect of dismissing the Aboriginal rights, title and interests of the members of the Stó:lō Collective. This is extremely disappointing and disturbing behavior on the part of the proponent. It is also disappointing to the Stó:lō Collective that this process has not ensured that Trans Mountain actually provides substantive answers in response to our concerns about the effects of the Project on the Aboriginal rights, title and interests of the members of the Stó:lō Collective.
14) The record before the NEB shows conflicting information related to the interests of the members of the Stó:lō Collective within the Project area with respect to Trans Mountain’s consultation, consideration of traditional knowledge and commitments to work with Aboriginal people.
15) We further object to the revised Final Argument filed by Trans Mountain. The written direction from the NEB stated that Trans Mountain could revise its Final Argument to reflect the replacement evidence and comments from Intervenors with respect to that replacement evidence. However, Trans Mountain has revised its Final Argument in many ways far
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5 beyond issues that arose with respect to replacement evidence. Contrary to the direction of the Board, Trans Mountain appears to have taken this as an opportunity to do a wholesale revision of its Final Argument. The Stó:lō Collective submits that all revisions to Trans Mountain’s Revised Final Argument should be deleted except for revisions that are directly related to the replacement evidence. If Trans Mountain’s Revised Final Argument is accepted as submitted, it will be further evidence of the essential unfairness of the NEB process in this hearing.
For revisions to with respect to Wildlife Species at Risk Mitigation Plans see: Trans Mountain’s Revised Final Argument p. 201-210.
For re-writes with respect to EPPs see: Revised Final Argument p. 205.
For a change in its commitment from installing a new ambient monitoring station to a commitment that it will monitor air emissions see: Revised Final Argument p. 251.
For changes to its reference to specific Draft Conditions see: Revised Final Argument p. 257 and 278.
For additional paragraph re BC Parks see: Revised Final Argument p. 275.
For deleted argument with respect to potential carcinogenicity of DPM see: Revised Final Argument p. 372 and 374-376
16) Because of these procedural flaws, the NEB has no way to accurately make a recommendation on its List of Issues with respect to the effect of the proposal on the Stó:lō Collective.
17) The Stó:lō Collective submits that the Terms and Conditions are deficient on many fronts. First, the Terms and Conditions provide too little by way of imposed mitigation measures. Broad conditions demanding plans from Trans Mountain in the absence of any required standards that Trans Mountain must meet are deficient by definition. Monitoring is not mitigation.
18) Second, there is no condition in the Terms and Conditions that Trans Mountain must protect the sacred sites and constitutionally recognized fishing rights of the members of the Stó:lō Collective. This is imperative to the Stó:lō Collective. Several important sacred sites and fishing sites are within the pipeline right of way. These have not been included in the alignment sheets and have not been considered for mitigation purposes. At least one important cultural site is planned as a staging area, which will completely destroy it. Our cultural sites have been ignored despite the fact that the Stó:lō Collective has repeatedly put
6 the information before Trans Mountain and asked for them to be protected. This is also contrary to a specific commitment made by Trans Mountain that it would protect all Stó:lō cultural sites.
19) Third, Trans Mountain has repeatedly stated to the Stó:lō Collective that there are no funds for protection and mitigation beyond the duty of the National Energy Board terms and conditions, but only funds for the negotiation of mutual benefits agreements. The Stó:lō Collective strongly objects to this. Mitigation of the effects of the Project should not be contingent on the signing of a mutual benefits agreement. Identification of Aboriginal interests and mitigation measures arise as a result of the Crown’s duties to Aboriginal people, not as a reward for entering into an agreement with a private party.
Document ID # A4L 7C0: Sto:lo Collective Evidence Final Filed: Appendix 4(e) pg. 268. “. – paragraphs 6, 9, 10; pg. 269– paragraph 4; pg. 270 paragraphs 4-6; ‘272”- paragraphs 1-413.
20) Fourth, the Terms and Conditions are not stringent enough with respect to the involvement of the Stó:lō Collective in the ongoing Project. The experience of the Stó:lō Collective during this process has shown that Trans Mountain reports inaccurately to the NEB with respect to the Stó:lō Collective. There is no reason to believe that this behavior will change in the future. The Stó:lō Collective submits that the Terms and Conditions should include a requirement that the Stó:lō Collective sign off on actions Trans Mountain purports to have accomplished with the Stó:lō Collective. Without such sign-off, the NEB should consider that Term or Condition incomplete. This requirement of sign-off by the Stó:lō Collective should be written into the Terms and Conditions.
21) Finally, because of the long time (approximately 7 months) between the close of evidence and the date for written submissions, there is now a significant evidence gap in the hearing process. Significant actions have been taken by Trans Mountain that provides evidence of its intention not to abide by commitments it made to the NEB. That evidence should be before the NEB but the Stó:lō Collective is unable to submit evidence because of the evidence gap.
22) The Stó:lō Collective submits that for all of these reasons the evidence before the NEB with respect to the effect of the Project on the members of the Stó:lō Collective is deficient The
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7 Stó:lō Collective objects on procedural grounds to the NEB recommending any certificate of convenience and necessity to Trans Mountain. We submit that this process has been too deeply flawed. A process that fails to so obtain the required information with respect to the effect of the Project on the members of the Stó:lō Collective is deficient and any Terms and Conditions proposed are, therefore, also deficient.
8 Part Two: Statement of Facts
Who is the Stó:lō Collective? 23) The Stó:lō Collective is composed of 13 Stó:lō villages (also Bands within the meaning of the Indian Act) who hold interests and traditional territory in the Fraser Watershed. The Stó:lō Collective is an unincorporated association that holds the mandate to represent the interests of its members in these proceedings. As identified above, 9 members of the Stó:lō Collective have also authorized the Ts’elxwéyeqw Tribe to represent their interests in negotiations with Trans Mountain regarding a mutual benefits agreement. To date, these negotiations have not resulted in an agreement with Trans Mountain.
24) The Stó:lō Collective has been formed only for the purpose of these proceedings and as such holds no Aboriginal rights, title or interests in and of itself. Where these submissions refer to Aboriginal rights, title or interests of the Stó:lō, the reference is to Aboriginal rights, title or interests held by the members of the Stó:lō Collective – whether through their band, community or Tribe, or as Stó:lō or Coast Salish people.
25) The communities who currently form the Stó:lō collective are:
Aitchelitz Skowkale Shxwà:y Soowahlie Squiala Tzeachten Yakweakwioose Skwah Kwaw-Kwaw-Apilt Leq’á:mél Sumas Scowlitz Skawahlook
For evidence about the original Bands that formed the Stó:lō Collective see: Document ID #: A3U2L3: Application to Participate14 For evidence that shows the location of the Stó:lō Collective villages to the pipeline see: Document #?? - Traditional Land and Resource Use and Supplemental Technical Reports – Traditional Land Use Part 2 of 4 – A3Z4Z2 - pp. 1-215 and Document ID# A4L7A4 - Written evidence Appendix 2 - – CHOA Map Book16
26) The Stó:lō are the “People of the River” – the Fraser River. For thousands of years Stó:lō
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9 have lived in, occupied and used their traditional territory, S’ólh Téméxw, which is in the lower Fraser River watershed of southwestern British Columbia. Stó:lō are Halkomelem- speaking Coast Salish people and are tribally organized. Stó:lō live in many Coast Salish villages, all of which are in the lower Fraser River watershed. Stó:lō are culturally, spiritually, physically, psychologically, and economically interconnected with the land and resources of S’ólh Téméxw.
For evidence of ancient occupation of Lower Fraser River watershed see: Document ID #: A4C7k2 - TMEP Stolo Appendices ACDE17 - - Indicator report For evidence of interconnection of the many Stó:lō villages see: Document ID #: A4C7k2 - TMEP Stolo Appendices ACDE18 - - Indicator report For evidence of Stó:lō’s long history of defending their lands see: Document ID #: A4C7k2 - TMEP Stolo Appendices ACDE19 - - Indicator report
27) The Stó:lō maintain a wide range of political, socio-cultural, and economic ties, including occupation, use, and management of the land and resources within S’ólh Téméxw. Stó:lō identity and societal health, including an interconnected set of spiritual, mental, physical and emotional relations, are linked to and dependent upon the integrity of the land, air, water, and resources constituting S’ólh Téméxw and the Stó:lō cultural landscape. The activities of Stó:lō within S’ólh Téméxw provide a holistic view of economic, social, political, environmental, and spiritual connectivity; one cannot be successful or healthy without the other, for all things have shxwelí (spirit) and all things are interconnected.
For evidence of political, socio-cultural and economic ties see: Document ID#: A3Z4Z5 - TLU Part 4 of 4 - Integrated Cultural Assessment – Section 14 – Economy pp. 87 – 110.Section 15 – Community Programs and Services/Social Development – pp. 111 – 147.20 For evidence of management of land and resources within S'ólh Téméxw see: Document ID A3Z4Z4 - TLU Part 3 of 4 - Integrated Cultural Assessment pp. 1 – 130.21 Document ID A3Z4Z5 - Document ID#: A3Z4Z5 TLU part 4 of 4 – Integrated Cultural Assessment – pp. 1-148. For evidence that Stó:lō identity and societal health is linked to and dependent on the resources of S'ólh Téméxw see: Document ID#’s A3Z4Z1 – A3Z4Z5.22 For evidence about shxwelí see: Section 7 – Spiritual Activities pp. 89-114.23
17 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2525589&objAction=browse&viewType=1 18 Ibid 19 Ibid 20 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2487587&objAction=browse&viewType=1 21 Ibid. 22 Ibid. 23 Ibid.
10 28) Stó:lō identity is not limited to tangible heritage or a geographically grounded place. It is based in enduring activities, such as fishing, language (Halkomelem), stories, songs, and storytelling, protection of cultural practices, and the protection from ’others’ (i.e., non- Stó:lō). Many aspects of Stó:lō intangible heritage and traditional cultural expressions, including transformer narratives, songs, spiritual and cultural principles and practices, are shared among Stó:lō individuals and families living throughout S’ólh Téméxw creating a collective identity that has both spatial and non-spatial linkages and connections. As a result, impacts to Stó:lō people and culture cannot be assessed or understood simply as a factor of ‘spatial proximity’ and direct spatial relations between the location of a resource or place of practice (i.e., site), an area of impact, and a particular community (i.e., reserve or Band).
For evidence of Stó:lō cultural activities see: Document ID#’s A3Z4Z1 – A3Z4Z5.24 Document ID #: A4C7k2 - TMEP Stó:lō Appendices ACDE25 - Indicator report For evidence of transformer narratives see: Document ID#: A4L7C3 Written evidence Appendix 6 – Sxwōxwiyá:m Oral History Relating to Stó:lō pp3 – 1026
29) One translation of the term Stó:lō is “the people of the river”. The river referred to in their very name is the Fraser River. Stó:lō historic villages, culture, fishing and spiritual practices are intimately connected with the Fraser River. Several kilometers of the pipeline route closely follow the Fraser River. This new pipeline is yet another in a series of linear corridors (Highway #1, two railroads, the existing pipeline, hydro lines, roads, etc.) that have acted to sever the Stó:lō from the Fraser River. The cumulative effect of all of these linear corridors is to leave Stó:lō with very few places where they can access the river that gives them their name.
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11 Part Three: Misrepresentations in Trans Mountain’s Final Argument 30) There are multiple inaccurate statements made by Trans Mountain in their Final Argument (December 15, 2015). The Stó:lō Collective submit that the following statements made by Trans Mountain misrepresent the facts and have not been subjected to any process of verification.
a) Trans Mountain made every effort to provide Aboriginal groups with opportunities to engage in meaningful dialogue in the manner they choose, and in a way that met their objectives and values. (Trans Mountain Final Argument, p. 29) The evidence does not support this claim.
b) As a result of the information it received, Trans Mountain made significant modifications to the Project in order to (i) reduce impacts on the land and marine environment; (ii) address concerns regarding routing and construction; (iii) address socio- economic considerations; and (iv) enhance Aboriginal involvement and engagement. (Trans Mountain Final Argument, p. 29) There is no evidence before the NEB to support this claim. Trans Mountain has not enhanced its involvement and engagement with the Stó:lō Collective.
c) The Pipeline EPPs also … identify resource-specific mitigation and measures related to the protection of traditional use resources or culturally sensitive areas (e.g., use of Aboriginal Monitors, Traditional Land Use Sites Discovery Contingency Plan, Heritage Resources Discovery Contingency Plan). (Trans Mountain Final Argument, p. 81) The evidence is that Trans Mountain has not and will not modify any part of the Project to reduce impacts to cultural sites, fishing or harvesting areas that are important to members of the Stó:lō Collective. The evidence on record shows that Trans Mountain has ignored several of these important sites, which are at risk of obliteration because of the Project.
d) Trans Mountain made significant efforts to gain a better understanding of Aboriginal interests, values, concerns, contemporary and historic activities, Aboriginal traditional knowledge and the important issues facing each potentially affected Aboriginal group as
12 part of its assessments. This understanding was guided by Traditional Ecological Knowledge (“TEK”), Traditional Land and Resource Use (“TLRU”), Traditional Marine Resource Use (“TMRU”) studies and Cultural Use Assessments conducted by Aboriginal groups with Trans Mountain’s support. The results of the studies and assessments are incorporated into the Socio-Economic Effects Assessment of Traditional Land and Resource Use, Traditional Marine Resource Use and Cumulative Effects Assessment contained in the Application. The results are also incorporated into the EPP and environmental alignment sheets to inform site-specific mitigation. (Trans Mountain Final Argument, p. 82) There is no evidence that Trans Mountain has or will modify any part of the Project to reduce impacts to cultural sites, fishing or harvesting areas that are important to members of the Stó:lō Collective, with the result that several important cultural sites are at risk. Trans Mountain has not incorporated many important traditional use, spiritual or sacred sites on environmental alignment sheets or Stó:lō Collective recommendations into its EPPs. e) Aboriginal groups also expressed concerns regarding the effects of an oil spill on community health, either indirectly through impacts on cultural activities, sensitive sites or food resources, or directly through increased stress, anxiety and the perception of contamination. Trans Mountain acknowledges [that] evidence from past spills demonstrates that Aboriginal peoples who rely on subsistence foods and natural resources are at greatest risk for adverse effects. (Trans Mountain Final Argument, p. 85 and 207) The Stó:lō Collective agrees with this statement. f) Trans Mountain remains confident that accidents and malfunctions … have a low probability of occurrence. Further, the construction and routine operations will not result in significant adverse effects on the ability of Aboriginal communities to continue to use land, waters or resources for traditional purposes, and thus the Project’s contribution to potential broader cultural impacts related to access to and use of natural resources is also considered not significant. (Trans Mountain Final Argument, p. 85) The Stó:lō Collective disagrees and states that the evidence does not support this assertion. In fact the evidence to date shows that the Project will significantly damage, if not destroy, at least one important Stó:lō cultural site.
13 For evidence of the significant effect of the Project on Lightening Rock see:
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit C pg. 47-4827
g) Trans Mountain’s approach to Aboriginal engagement in relation to the Project has been inclusive and responsive. …Trans Mountain continues its engagement with Aboriginal groups to address their Project specific concerns and maximize Project-related benefits. (Trans Mountain Final Argument, p. 86) The evidence does not support this statement. For example – the ICA was filed in March 2014. We have written and called Trans Mountain several times to try to meet with technical people to discuss the ICA results and mitigation planning since summer of 2014. When we finally met in September of 2014 none of our issues had been addressed. This is not “inclusive and responsive” engagement.
h) In Trans Mountain’s view, Aboriginal groups have been adequately consulted regarding the Project. The NEB process has provided ample opportunities for Aboriginal groups to participate and be heard. (Trans Mountain Final Argument, p. 80) Based on its interactions with Aboriginal groups, Trans Mountain submits that it has proposed mitigation measures that adequately address the Project-related concerns it received from Aboriginal groups. (Trans Mountain Final Argument, p. 87) The Stó:lō Collective profoundly disagrees. The information gathering process used by Trans Mountain has been inadequate. The process has not provided adequate opportunity to test Trans Mountain’s assertions with respect to its proposed mitigation measures. Trans Mountain has not addressed the concerns raised by the members of the Stó:lō Collective about the Project.
i) The Board expects applicants to consult with potentially impacted Aboriginal groups early in
the Project planning and design phases. Trans Mountain took this responsibility seriously and undertook extensive efforts to develop a clear understanding of Aboriginal interests, values, concerns, contemporary and historic activities, Aboriginal traditional knowledge and the important issues facing each potentially affected Aboriginal group. These efforts can be summarized as follows: … (b) Second, Trans Mountain provided opportunities for
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14 each Aboriginal group to inform Trans Mountain of any issues and concerns regarding the Project or of any traditional or contemporary land or resource uses that could be affected by the Project. (c) Third, Trans Mountain proposed actions to address or mitigate those issues of concern, wherever such actions were appropriate. (Trans Mountain Final Argument, p. 191-192). The Stó:lō Collective submits that the evidence shows that Trans Mountain has not proposed actions to address or mitigate our concerns and in fact has ignored important cultural sites and planned its route in a manner that will destroy them. j) Trans Mountain recognizes that it is best placed to provide information regarding the TMEP to, and receive information from, Aboriginal groups. The feedback received from Aboriginal groups as a result of Trans Mountain’s consultation efforts has been a fundamental element of Project planning and design and continues to influence the planned operations for the TMEP. This open and responsive approach to addressing the interests and concerns of Aboriginal groups is reflected in how Trans Mountain operates the existing TMPL, Trans Mountain’s existing relationships with Aboriginal groups and the organization’s reliance on
the KMC Aboriginal Relations Policy to guide best practices. To date, Trans Mountain’s approach for the Project has been equally open and responsive as supported by extensive evidence, letters of comment, Board decisions and other relevant documents filed on the
public record. (Trans Mountain Final Argument, p. 192-193) Trans Mountain has not included Stó:lō Collective information in its Project planning and design. k) The public record demonstrates that Trans Mountain provided Aboriginal groups who expressed an interest in Project an opportunity to engage in meaningful dialogue in the manner they choose, and in a way that meets their objectives and values. (Trans Mountain Final Argument, p. 195) The members of the Stó:lō Collective disagree. The few opportunities for dialogue were not in the manner chosen by the members of the Stó:lō Collective. The dialogue that did take place has been difficult and our information has been unilaterally filtered by Trans Mountain. They have not met the objectives or values of the members of the Stó:lō Collective. In particular, we note that the ICA is a value based impact assessment and Trans Mountain has failed to engage in meaningful dialogue with respect to it. l) Aboriginal groups were also provided with opportunities to participate in TEK work and
15 conduct TLRU and TMRU studies either independently or with Trans Mountain’s consultants. Certain Aboriginal groups opted to participate in Cultural Use Assessments. The results of these studies are incorporated in the Socio-Economic Effects Assessment
of TLRU and Cumulative Effects Assessment contained in the Application. The opportunity to conduct both community-led and Trans Mountain-funded studies for the Project has been provided at the request of Aboriginal groups. (Trans Mountain Final Argument, p. 197) This statement is not supported by the evidence. The Stó:lō Collective have not seen any of their information incorporated into the Socio-Economic Effects Assessment or into the Cumulative Effects Assessment. Trans Mountain excluded some of the information provided by the Stó:lō Collective in the TLRU summaries.
m) The Crown uses Issues Tracking Tables to ensure that it has an accurate understanding of Aboriginal interests, concerns and the views of Aboriginal groups on the potential adverse impacts of the Project to potential or established Aboriginal and Treaty rights. In the tables, the Crown identifies responses to potential impacts and concerns and indicates whether issues have been addressed in Trans Mountain’s commitments, NEB conditions or other forms of accommodation. The tables have been updated based on evidence submitted to the NEB and through the IR process. (Trans Mountain Final Argument, p. 200) The Stó:lō Collective submit that Trans Mountain is not accurately updating tables to reflect commitments made during the IR process or intervener evidence.
For evidence of the inaccuracies in commitment tables see: Document Id# A4S 3J8: Letter to NEB regarding commitments table28.
n) Trans Mountain will circulate its EPPs to Aboriginal groups for comment and feedback in the fall of 2015.29 Following circulation of the EPPs, Trans Mountain plans to hold a series of workshops for Aboriginal groups to provide additional input and recommended changes to improve the EPPs. This input and recommended changes will be provided back to the Aboriginal groups and to the Board in a future consultation reports. Pursuant to Draft Condition No. 63, the EPP filed with the NEB will include a summary of Trans Mountain’s consultation with potentially affected Aboriginal groups, including any comments or
28 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2811069&objAction=browse&viewType=1 29 As of the filing of this submission, Trans Mountain has still not provided complete EPPs to the Stó:lō Collective.
16 concerns raised and how Trans Mountain has addressed or responded to them. The process is designed to refine and optimize the work based on knowledge of the EPP mitigation
measures to be implemented in the field. (Trans Mountain Final Argument, p. 205) Our review of the EPPs showed that none of Stó:lō traditional use or spiritual sites were included. Trans Mountain states that it will respond and include our input to change and improve the EPPs, but in fact they have not done that.
For evidence of these discrepancies and commitment from TMEP, see: Document ID # A4L 7C0 Sto:lo Collective Evidence Final Filed: Appendix 4(e) pg. 266. paragraphs 5, 7, 10. Pg. 267 – paragraphs 1, 4, 5, 6, 7. pg. 271 – paragraphs 3- 11. 30.
o) Through Trans Mountain’s Environmental Education Program, all personnel working on the construction of the Project will be informed of the location of known TLRU sites. Sensitive
resources identified in the Environmental Alignments Sheets and environmental tables within the immediate vicinity or the right-of-way will be clearly marked before the start of clearing. (Trans Mountain Final Argument, p. 205) As described in paragraph 60 below, the Stó:lō Collective submit that this statement is inaccurate since many important cultural heritage, fishing and harvesting areas are not on TMEP environmental alignment sheets.
p) If additional TLRU sites are identified prior to Project construction, the sites will be assessed and appropriate mitigation measures will be determined and applied. Access will be managed, where required, along the Project where new temporary and permanent access is
created for the construction and operation of the pipeline. To mitigate environmental effects associated with increased access, Trans Mountain will manage access along portions of its right-of-way by implementing mitigation measures during the pre-construction, construction and post-construction phases. (Trans Mountain Final Argument, p. 206) The Stó:lō Collective submit that this is not possible unless Stó:lō experts are involved in preconstruction surveys and construction monitoring.
q) During Project construction, Aboriginal Monitors will be engaged as part of the onsite Environmental Inspection Teams to provide traditional knowledge to the construction program to ensure protection of the environment, discuss upcoming traditional and western science elements with the environmental inspectors to ensure the successful protection,
30 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1
17 mitigation and monitoring requirements set out in the EPPs. (Trans Mountain Final Argument, p. 206) The Stó:lō Collective submit that “Aboriginal Monitors” will not suffice. Aboriginal people who are not from the traditional territory of the members of the Stó:lō Collective will have no knowledge of Stó:lō cultural sites, traditions or practices. Only Stó:lō Monitors can provide this information.
r) As discussed in Section 4 - Emergency Response of this final argument, Trans Mountain has comprehensive spill response plans in place for the TMPL and associated facilities to protect the terrestrial and aquatic resources relied on by Aboriginal groups. (Trans Mountain Final Argument, p. 207) The members of the Stó:lō Collective have, in fact, been excluded from these plans.
s) Trans Mountain is committed to maximizing opportunities for Aboriginal groups in Project- related employment, the majority of which will be through contracting opportunities related to Project construction. Where qualified Aboriginal community members are available, they will be identified and have the opportunity to gain employment related to pipeline or facilities construction. (Trans Mountain Final Argument, p. 213) The evidence shows that Trans Mountain has reneged on this commitment with respect to archaeological fieldwork. Stó:lō have qualified community members available. However, they have been denied the opportunity to obtain contracting positions related to archaeological fieldwork. Trans Mountain will not pay Stó:lō members to participate in archaeological field work and has stated that it will use other Aboriginal peoples instead. The Stó:lō Collective state, particularly with respect to archaeological field work, that there are no persons who are not Stó:lō who have the necessary skills and knowledge to do this work.
Document ID # A4L 7C0 Sto:lo Collective Evidence Final Filed: Appendix 4(e) pg. 202 subsection 3(a); and 269 paragraph 731
t) Trans Mountain acknowledges that a number of Aboriginal groups continue to express interests and concerns regarding Project-related issues. (Trans Mountain Final Argument, p. 215) The Stó:lō Collective agree and these written submissions are a further expression
31 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1
18 of concern. u) The ESA concluded that there were potential residual socio-economic effects on social and
cultural well-being indicators. However, Trans Mountain’s ESA concluded that there are no situations for social and cultural well-being indicators that would result in a significant residual socio-economic effect. Therefore, the residual socio-economic effects of Project construction and operations on social and cultural well-being indicators will be not significant. (Trans Mountain Final Argument, p. 355) The evidence shows that there will be significant effects on Stó:lō social well-being because several important cultural sites will be damages by the Project. The evidence also shows that Trans Mountain’s idea of traditional resource use is too narrow and very different from the Stó:lō perspective. Past experience also shows that Trans Mountain does not follow through with its commitments with respect to remediation. The evidence with respect to McCallum Stream shows that it was severely damaged by Trans Mountain and the poor remediation has resulted in the loss of cultural use by members of the Stó:lō Collective.
19 Part Four: The Issues
31) The Stó:lō Collective submissions concern the following issues:
A) Procedural Issues: i) The lengthy gap between the closing date for submission of evidence and the date for filing written submission; ii) The lack of cross-examination; iii) Deficiencies with the evidence with respect to the effects, including cumulative effects, of the Project on the members of the Stó:lō Collective; and B) Deficiencies in the proposed Terms and Conditions.
20 Part Five: Submissions
(A) Procedural Issues 32) The evidence before the NEB with respect to Trans Mountain’s Project suffers from deficiencies in a number of key areas. These deficiencies arose from procedural flaws, which preclude a reasonable assessment of the proposed Project. It is submitted that, because of these procedural flaws the NEB cannot reasonably conclude that there will be no significant adverse environmental effects from the proposed Project.
33) The Scope of Factors for this Project states in s. 2.1 that:
The CEAA 2012 environmental assessment for the designated Project will take into account the factors described in paragraphs 19(1)(a) through (h) of the CEAA 2012:
(a) the environmental effects32 of the designated Project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated Project and any cumulative environmental effects that are likely to result from the designated 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);
34) Environmental effects with respect to Aboriginal peoples are described in CEAA, 2012 as follows:
5. (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated Project or a Project are: (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.
35) The record before the NEB contains outdated, insufficient, contradictory and inaccurate evidence with respect to how the proposed Project will impact the members of the Stó:lō Collective and with respect to the cumulative effects on their culture. This is as a result of procedural flaws that arose because of, among other things, a lengthy evidence gap and the lack of cross-examination.
36) The Stó:lō Collective submits that the NEB cannot issue a positive recommendation for the
32 Section 5 of the CEAA 2012 further describes the environmental effects that are to be taken into account.
21 proposed Project because it does not have before it accurate, up-to-date, non-contradictory and sufficient information to conclude that the proposed Project will not cause significant adverse environmental effects or to make a determination that the proposed Project is in the public interest.
37) The Stó:lō Collective submits that, for procedural reasons, the NEB should not recommend that the Project be approved.
(i) The Evidence Gap 38) In Procedural direction No. 10 dated February 13, 2015, the NEB imposed a deadline of May 27, 2015 for filing written evidence. At that time, the date for filing written submissions was September 1, 2015; approximately 14 weeks. For reasons associated with the appointment of a new NEB board member, the dates for filing written submissions were extended from September 1, 2015 to January 12, 2016; approximately 33 weeks. This means that there is a 19 week evidence gap.
39) On September 24, 2015 the Board issued Procedural Direction No. 18 in which it stated that:
Past steps having to do with all evidence on the hearing record other than the Stricken Evidence are considered complete. The excluded period does not result in those steps being “re-opened” or extended for the purposes of addressing that other evidence.
40) Pursuant to Procedural Direction No. 18, the NEB did not permit Intervenors to submit additional evidence about activities of Trans Mountain after May 1st, 2015.
41) The failure of the NEB to also extend the date for filing evidence is important. Intervenors are unable to submit relevant and important evidence about Trans Mountain’s activities, meetings and correspondence with Trans Mountain during the evidence gap., Stó:lō submit that during the evidence gap Trans Mountain took a series of actions that breached its commitments to the Stó:lō Collective.
42) On December 16, 2015, the Stó:lō Collective filed a motion seeking to adduce evidence with respect to Trans Mountain’s activities during the evidence gap. No response to this motion was received prior to the written argument-in-chief mandatory filing date.
43) The evidence gap created by the NEB seriously undermined the fairness of this process. It
22 materially damaged the Stó:lō Collective’s opportunity to submit relevant evidence and to prepare meaningful comment. It means that the NEB is lacking critical evidence and responses. We say this evidence gap was arbitrary and has materially affected the fairness of the process. A key part of any public process is the ability of directly affected Aboriginal Intervenors to submit relevant evidence. A process that excludes relevant and material evidence undermines public dialogue and is not a fair hearing process.
44) In his letter of June 23rd, Dr. David Schaepe, Director and Senior Archaeologist at Stó:lō Nation’s Stó:lō Research and Resource Management Centre (SRRMC), responded to Gary Youngman’s letter of May 26th in which Trans Mountain set out a unilaterally determined program for completing the archaeological impact assessment (AIA). Mr. Youngman’s letter was issued in response to an earlier request by Dr. Schaepe for Trans Mountain to address the status of the AIA timelines for completion, having been delayed, and the status of funding needed to support Stó:lō involvement in the AIA following the completion of the ICA. Dr. Schaepe’s response lays out a set of objections to limitations placed by Trans Mountain on Stó:lō involvement in the AIA, including the exclusion of First Nation field assistants from any Project area involving private lands. Such limitations were in contravention of the terms and conditions defined in Stó:lō Heritage Investigation Permit 2013-44 and 2013-52 as agreed to by Trans Mountain’s consultants. Trans Mountain was found to be out of compliance with those terms and a ‘stop work order’ was issued until such time as Trans Mountains restrictions could be addressed and compliance with the Stó:lō Policy reestablished.
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit D pg. 101-11533.
45) Mr. Youngman responded to this letter (email of July 4th) stating that, “you have highlighted some important points that require our immediate attention. You have properly noted our commitment to the Stó:lō Collective as filed with the NEB and we wish to apologize for that oversight.” Substantial effort, capacity and cost was required on the part of the SRRMC to meet with Trans Mountain and work to remedy the situation. Discussions with Trans Mountain led to a revised Stó:lō Heritage Investigation Permit (Amendment II), executed by
33 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1
23 Stantec, Amec, CM2H and Trans Mountain representatives on August 18th .
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit D pg.99-10034
46) SRRMC submitted numerous requests for funding to support their ongoing involvement in the AIA. Such requests, as noted in Dr. Schaepe’s letter of June 23rd, 2015, were repeatedly submitted to Trans Mountain since at least December 12th, 2014 and continuing past May 27th and through December 2015 (see email to / from Trans Mountain Archaeological Project Manager Candice Sawchuck – December 2, 2015). No funding has been provided by Trans Mountain for the SRRMC’s involvement in completing the AIA. Responses received from Trans Mountain indicated that prospects for funding would have to come in the form of a mutual benefit agreement. The SRRMC objected to this as out of line with funding necessary information gathering, impact assessment and mitigation planning. The Stó:lō Collective submit that this position demonstrates a fundamental flaw with the engagement process to date: identification of Aboriginal interests and mitigation measures arise as a result of the Crown’s duties to Aboriginal people, not as a reward for entering into an agreement with a private party.
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final.pg.113-15; 131-132.
47) On September 24th, 2015, during a meeting with Trans Mountain representatives, including their archaeological Project manager (Candice Sawchuck) and their heritage consultant from Stantec (Shane Bond), it was stated by Trans Mountain representative Max Nock that while Trans Mountain had funding to support all other consultants’ involvement in development of the Environmental Protection Plan (EPP), including environmental and heritage site identification and mitigation plans, there was no funding available for First Nation involvement in that work.
As show in the following transcript supplied by Trans Mountain:
Stó:lō Collective – When will we discuss the information that has been provided? When will we discuss the next phase of work? We need to develop the mitigation plans. We need to look at how this project will be designed. Why is the relationship falling apart at this point in time? Trans Mountain – There is no funding
34 34 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1
24 Stó:lō Collective – So no more studies are occurring? No more field studies? No more plans need to be developed? Pens down for everyone? Trans Mountain – KMC has funding available for some work, but there is no more funding for First Nations.
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit C pg. 47-4835
48) Furthermore, at the September 24th meeting, Stantec’s heritage consultant Shane Bond indicated that in work Trans Mountain carried out with Stantec on the EPP, two heritage sites of high significance were identified as needing treatment in the EPP – Lightning Rock (near the Sumas First Nation reserve in Abbotsford) and the archaeological site known as the ‘Fred Richmond Site’ (near Hope; previously impacted by the construction of Highway 1). It was identified that a staging ground was proposed for the area near Lightning Rock.
As show in the following transcript supplied by Trans Mountain:
Stó:lō Collective – As director of the SRRMC and administer of the Stó:lō Heritage policy, I’m not aware of any mitigation plans that re currently being completed. This is a red flag. I’m not interested in viewing something on the backside, we want to be involved in the development of the mitigation plans. If SRRMC was involved then appropriate work will be done. We are currently not in alignment on this process, and there are definitely “no work” zones in the area. I don’t want to get into the situation where we are issue “Stop-Work” orders.
Trans Mountain – We are currently developing the heritage mitigation plans. For example – we are currently developing a mitigation plan for a temporary work space in the area that includes Lightning Rock.
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit C pg. 47-4836
49) Dr. Schaepe clearly objected to that proposed use, informing Trans Mountain and Stantec that in addition to Lightning Rock, the area in question was an extensive burial site and that development would not be permitted in that area. Despite this area being mapped and described in materials that were provided to Trans Mountain in March 2014, neither Trans Mountain nor Stantec heritage specialists claimed to have any knowledge of the cultural significance of the location and had never seen the abundant information that Stó:lō had
35 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1 36 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1
25 provided to Trans Mountain. Trans Mountain has not included information regarding the burial mounds linked to small pox and first contact on their alignment sheets.
As show in the following transcript supplied by Trans Mountain:
Stó:lō Collective – This is unacceptable. That is a highly sensitive area – a no work zone period. If SRRMC were involved in the beginning TM could avoid this kind of conflict. These types of conflict are easy to avoid if we work together. Stó:lō want to work together on this. So how can this happen? We don’t want to be on opposite sides of the table.
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit C pg. 47-4837
50) Beyond the Fred Richmond Site and Lightning Rock, no mention was made of the many other Stó:lō heritage sites identified in the ICA and plotted within the Project area on maps provided to Trans Mountain.
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit A. pg. 7; Exhibit C pg. 4238..
51) Neither the SRRMC nor the Stó:lō Collective had any knowledge of or involvement in any of the heritage work that was undertaken by Trans Mountain, even though the scope of that work falls within the terms of the Stó:lō Heritage Investigation Permits agreed to by Trans Mountain and Stantec, and was a commitment made by Trans Mountain regarding Archaeological field work and mitigation planning. This work was commenced to the exclusion of Stó:lō and the SRRMC co-directors of the archaeological and heritage work.
Document ID#: A4L7AS - Written evidence – Appendix 4(e) page 202 Subsection 3(a)39 Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit H pg. 133-16940;
52) In October, a teleconference including Dr. Schaepe, Cara Brendzy, Candice Sawchuck, and Shane Bond was held as a follow-up to the September 24th meeting. The focus of the discussion was development of plans to meet as a team and discuss the scope of work, roles and responsibilities, work plan and implementation of work on the EPP and its inclusion of
37 Ibid. 38 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1 39 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1 40 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1
26 heritage sites, with SRRMC’s direct involvement. Funding to support SRRMC’s involvement was raised as an issue, and requirement for the Project to incorporate their expertise and knowledge. Ms. Sawchuck indicated that she would raise this with Trans Mountain.
Appendix 2; Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final41
53) On November 13th, Candice Sawchuck notified SRRMC staff that EPP Heritage Sites Project was delayed. She stated,
“I wanted to touch base with you in regards to the planning and work that needs to be done on the significant sites. At this time, we are still internally working to get all our information in place to capture all significant sites that have been identified to date through our field program. As we are still working on data from this year, we will not be ready to have our work plan meeting next week as previously discussed.”
Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibit G - Pg. 7142.
54) No information was provided from Trans Mountain addressing the request for funding to support the SRRMC’s involvement. These deficiencies of funding for Stó:lō involvement and lack of progress on developing plans for the management of Stó:lō heritage sites are critical failures of the process to provide information needed to make decisions on the Trans Mountain Pipeline Project. Trans Mountain has consistently delayed the treatment of these points, as a transgression of due process.
55) As of May 27th, and to January 12, 2016, the AIA of the portion of the Trans Mountain Pipeline Expansion within territory of the members of the Stó:lō Collective, as an intended element of the ICA, was not completed prior to the NEB deadline for filing evidence due to delays arising from Trans Mountain’s administration of the Project. As a result of this deficiency, a substantial set of information relevant to the assessment of potential adverse effects on heritage and culture of members of the Stó:lō Collective was excluded from consideration by the NEB.
(ii) Cross-Examination 56) Pursuant to s. 52(2)(e) of the NEBA, “the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant”. It is submitted that the
41 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1 42 Ibid.
27 requirement to have regard to “all considerations” places a clear and onerous evidence gathering duty on the Board to obtain all relevant information that is required to conduct this review.
57) The only evidence in this process that has been subject to cross-examination was Aboriginal traditional evidence. The opportunity for Trans Mountain to cross-examine Stó:lō Elders, which we emphasize is a culturally inappropriate practice, is the main reason that the Stó:lō Collective chose not to present oral evidence. The Board did not permit cross-examination of TMEP evidence.
58) The Board’s decision to eliminate cross-examination has undermined its duty to have regard to “all considerations” and has negatively compromised a process that is expected by the public to be fair, transparent and accountable.
59) The Government of Canada’s Department of Justice has informed the NEB that cross- examination is necessary. Although, Canada’s comments were made with respect to a specific motion, it is submitted their statements are applicable to the hearing in general.
Canada’s position is that cross-examination is necessary to ensure a proper evidentiary record … Cross- examination serves a vital role in testing the value of testimonial evidence. It assists in the determination of credibility, assigning weight and overall assessment of the evidentiary record ... Without cross-examination the Board will be reviewing only untested evidence.
Written Answer of the Attorney General of Canada in the matter of a Notice of Constitutional Question dated May 5, 2014 and a Notice of Motion dated May 6, 2014, at paras. 15, 16 and 18. Exhibit #; A3Y6K743
60) The Stó:lō Collective submit that its ability to challenge evidence effectively has been severely compromised by the lack of cross-examination. The original concept, that the evidence would be subjected to questions through written information requests, and then to questions raised by the applicant’s answers, has been inefficient, impractical and has yielded vague and tautological answers from Trans Mountain.
61) We note that some evidence attracted little scrutiny because it was filed shortly before the IR
43 https://docs.neb-one.gc.ca/ll- eng/llisapi.dll/fetch/2000/90464/90552/548311/956726/2392873/2449981/2484704/A54-5_- _E_%E2%80%93_Attorneys_General_on_Constitutional_Question_Notice_of_Motion_and_F_-_Non-Partcipants_- _A3Y9H5.pdf?nodeid=2484883&vernum=4
28 deadlines, which left Intervenors no time to consult experts and prepare effective questions. IRs also are ineffective in the face of a swiftly changing record of evidence. We further note that due to the large evidence gap, Trans Mountain has not been subjected to any scrutiny for its actions after May 27, 2105. The result is that the process has not meaningfully tested Trans Mountain’s evidence. Cross-examination would have enabled this testing.
62) The effectiveness of the IR process also suffers from a lack of transparency. This can be seen by the failure of Trans Mountain to keep track of its commitments to the Stó:lō Collective. We further submit that the scattering of thousands of documents throughout the registry contributes to the lack of transparency and accountability.
63) We note that the Stó:lō Collective made 89 recommendations to Trans Mountain. Trans Mountain replied to many of our recommendations with either no response, tautological references, a reference to another Intervenor’s IR that was of little or no relevance, or with vague and general statements that did not directly respond to the issue raised. During the first IR round, Trans Mountain was ordered by the NEB to provide only 115 responses to the 2,501 questions asking for more fulsome responses. We note that the BC government filed a motion to compel adequate responses because Trans Mountain ignored 80 of its questions. The NEB denied that motion.
64) After viewing the Board’s denial of motions to compel responses and Trans Mountain’s responses in the other IR rounds, it became clear to the Stó:lō Collective that Trans Mountain was never going to fully respond to IRs and that the NEB was never going to force Trans Mountain to do so.
65) It is in light of this that the Stó:lō Collective submits that the lack of cross-examination has effectively denied a meaningful opportunity to test and clarify the evidence.
(iii) Deficiencies in the Evidence with respect to effects of the Project on the Members of the Stó:lō Collective. 66) The NEB has provided a List of Issues it will consider. The ninth issue is the potential impact of the Project on Aboriginal interests.
67) The first step in assessing potential impacts on Aboriginal interests is to gather accurate
29 information from the Aboriginal peoples as to their interests. In other words, for the NEB to determine this issue, it must have accurate information on which to make its assessment. We submit that Trans Mountain has not provided accurate information to the Board and has misrepresented the potential impacts on the interests of the members of the Stó:lō Collective.
68) The deficiencies in the evidence are serious and not insignificant. We note that, “the Board’s standard conditions require companies to implement all of the commitments and undertakings as stated in a Project application and/or hearing.”44 Trans Mountain has already broken commitments made on the record, filtered evidence out of the record, failed to convey Stó:lō evidence to its experts, failed to consider relevant Stó:lō evidence, failed to include evidence in its alignment sheets and filed materials with the NEB that misrepresented the concerns of the Stó:lō Collective.
For evidence of broken commitments Wetlands surveys see. pp. 269; August 11, 2014 August 11, 2014; wetlands fieldwork; ; recommendation 23 response – IR 1 ; Round 2 IR response Document ID#: Appendix 4(f) p. 5945 and Document ID#: A4S7H3 - Appendix 7E letter to Stó:lō Collective March 31, 201546
For evidence of commitments that were adjusted to suit Trans Mountain’s needs see: Stó:lō Collective Written Evidence Appendix 4(f) - A4L7C0 – 5, 13, 18, 22-24,, 32-35; 63-??
For evidence of the failure to include Stó:lō evidence in the alignment sheets see: Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibits A and B47; Sto:lo Collective Evidence Final Filed – Document ID #’s A4L7A3, A4L7A4 - Appendix 1 and 2.48
For evidence of failure to consider relevant Stó:lō evidence see Document ID # #/A4W6Z2 S. Roberts Affidavit and Exhibits Final. – Exhibits A and B49; Sto:lo Collective Evidence Final Filed – Document ID#’s A4L7A3, A4L7A4, A4L7C0 - Appendix 1 and 2;4 (e) pp. 264-27450
69) Trans Mountain also stated, more than once, that unless the NEB actually rejects or objects to their filings or tells them to change their behavior then their assumption is that they are meeting the NEB requirements. In other words, the very act of filing, in Trans Mountain’s view, somehow is a guarantee of accuracy. Max Nock, Trans Mountain’s representative, stated on December 22, 2014 that, the “NEB is accepting the TMEP information to date, so
44 April 16, 2014, Draft conditions and regulatory oversight. And see Draft Terms and Conditions August 12, 2015. 45 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1 46 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2812634&objAction=browse&viewType=1 47 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1 48 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1 49 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2887817&objAction=browse&viewType=1 50 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1
30 the TMEP feels it is providing enough detail to meet the NEB needs …”
Exhibit # A4L7C0: Appendix 4(e), p. 266)51
70) Mr. Nock said again on February 10, 2015 that, “Trans Mountain needs to meet the needs of the NEB – not the Stó:lō Collective.”
Exhibit #A4L7C1: Appendix 4(f), p. 3552
71) Trans Mountain has to date exhibited no concern to maintain the accuracy of the information. We provide the following examples for 2014:
a) July 2014 – Trans Mountain filed its Supplemental Traditional Land and Resource Use Report (the “Supplemental TLRU”). In several instances this report suggests no Stó:lō TLU sites (gathering areas, spiritual sites, access routes, traditional fisheries) of concern are in the Project area and state that Stó:lō communities made no suggestions for mitigations. When the Stó:lō Collective objected to these statements and pointed out that they were inaccurate, Trans Mountain stated that it filtered information to protect the confidentiality of some specific sites. The Stó:lō Collective find this misleading because of the fact that in the Supplemental TLRU report, Trans Mountain does not suggest there are “confidential sites” in the area – it states that there are no sites in the area for several of the Stó:lō Collective communities and other communities being represented by the Integrated Cultural Assessment at that time (including Cheam).
Technical Report for the Trans Mountain Pipeline ULC Expansion Project and Appendix A: The Updated Socio-Economic Aboriginal Community Overviews filed with the NEB in July 2014 (Exhibit # A3Z4Z2: Traditional Land Use Part 1 of 4).53
a) July 2014 - Trans Mountain categorically and unilaterally decided that some of the information the Stó:lō Collective provided in the ICA is “not applicable”.
Document ID#: A4H9E3 – Trans Mountain Response to Sto:lo Collective IR No. 2, pg. 3 Response paragraph 2. 54
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31 b) July 2014 - Trans Mountain stated that its TLRU report did not include sites of archaeological or socio-economic nature. The decision to unilaterally and arbitrarily eliminate some sites leaves the erroneous suggestion that there are no sites that would be impacted by the Project and therefore there is no need for consultation, mitigation or accommodation.
Technical Report for the Trans Mountain Pipeline ULC Expansion Project and Appendix A: The Updated Socio-Economic Aboriginal Community Overviews filed with the NEB in July 2014 (Exhibit # A3Z4Z2: Traditional Land Use Part 1 of 4. pp. 34)
72) By the end of 2013, the Stó:lō Collective had not seen any evidence that indicated the technical or traditional ecological knowledge (TEK) pertaining to S’ólh Téméxw and cultural heritage sites and resources of the members of the Stó:lō Collective was being integrated into any Project plans. In 2014 the pattern continued:
a) July 2014 – Trans Mountain consistently failed to consider issues relating to Stó:lō cultural site protection. Trans Mountain’s survey work and proposed mitigation measures were inadequate. There were incidents where Stó:lō cultural sites were adversely affected. The Stó:lō Nation/Stó:lō Research and Resource Management Centre issued a Stop-Work Order for the archaeological work carried out by Trans Mountain’s consultants.
For evidence about the Archaeological Impact Assessment work see: Document ID # A3W6X8: Stó:lō Collective Information Request No. 1 to Trans Mountain. Document ID # A3Z1Y2: Attachment Table - Response to Stolo Collective Notice of Motion (p. 78-79) Document ID#: A4L7C0- Written evidence Appendix 4(e) – pp. 264 – 27355.
b) July 21, 2014 - Trans Mountain’s filing of the TLRU reports has arbitrarily reduced the number of Stó:lō sites that will potentially be affected by the Project. This includes sacred sites, plant harvesting areas, archaeological sites and habitation sites, fishing areas and waterways crossed. Further Trans Mountain’s filing with the NEB inaccurately indicates that Stó:lō had no concerns with the Project and that Stó:lō Communities have not made any recommendations related to plants, trails, sacred sites, etc.
For evidence about the omitted cultural sites see: Document ID#: A4G7E6 - Stó:lō Collective
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32 Information Request 2 to Trans Mountain56; Document ID#: A4H9E3 - Response to Stó:lō Collective Information Request 2 – p. 3 of 2957; Document ID#: A4L7C1- Written evidence 4(f) Letter to Gary Youngman pp. 66-6958
73) By the end of 2014, the Stó:lō Collective had not seen any evidence that indicates the TEK pertaining to S’ólh Téméxw and Stó:lō cultural heritage sites and resources was being integrated into any Project plans. The pattern continued throughout 2015 as follows:
a) January 8, 2015 – the fisheries lead for Trans Mountain (Callum Bonnington) stated that he had never seen the ICA and confirmed this is why no information from the ICA has been integrated into the Project EPPs and other management plans. None of the TEK or cultural information related to fisheries and waterways has been considered by Trans Mountain or their technical experts.
For evidence that the TPP and other plans do not include Stó:lō information see: Exhibit #A4L7C0- Written evidence Appendix 4(e) – pp. 264 – 27359; Exhibit # A4L7C1: Written evidence Appendix 4(f), p. 2-3).
b) The Stó:lō Collective submits that Trans Mountain committed other serious breaches during 2015, however the NEB has refused to admit evidence of Trans Mountain’s activities during the gap period.
74) As of the filing of its written submissions in January of 2016, the Stó:lō Collective has not seen any evidence that indicates that the TEK pertaining to S’ólh Téméxw and Stó:lō cultural heritage sites and resources is being integrated into any Project plans.
75) These examples highlight a pattern in Trans Mountain’s actions regarding the interests of the Stó:lō Collective: information is collected but not necessarily incorporated into plans submissions; and information is arbitrarily deleted or not included without consultation with the Stó:lō Collective. The result has been that the record regarding Stó:lō Collective interests is misleading and in many cases incorrect, and speaks directly to the fundamental flaws in the NEB process.
76) The Stó:lō Collective submits that, in light of the infirmities in the evidence and with respect
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33 to the effects of the Project on the Stó:lō Collective, this hearing process is flawed. For these procedural reasons, the NEB does not have the necessary information to formulate appropriate Terms and Conditions or to give a positive recommendation that Trans Mountain should be granted a certificate of convenience and necessity. Despite the round of information requests this NEB hearing process has not, to date, succeeded in eliciting the necessary information from Trans Mountain.
(a) Mutual Benefits Agreements, Mitigation & Monitoring 77) Throughout this process Trans Mountain has consistently suggested to the Stó:lō Collective that a Mutual Benefits Agreement would facilitate the implementation of Stó:lō’s recommended mitigation measures. The Stó:lō Collective are not suggesting that it is incorrect for Trans Mountain to engage the Stó:lō Collective or Bands in negotiations relating to mutual benefits agreements. In fact, the Ts’elxwéyeqw Tribe has a mandate to represent nine of the collective’s members in such negotiations. However, we do submit that a mutual benefits agreement should not be, in any way, a pre-condition of mitigation of the effects of the Project. These are separate and distinct considerations and must remain so. It is highly inappropriate of Trans Mountain to link these two issues. The Stó:lō Collective submit that this position demonstrates a fundamental flaw with the engagement process to date: identification of Aboriginal interests and mitigation measures to protect and address those interests are not a reward for entering into an agreement with a private party.
Document ID # A4L7C0 – Sto:lo Collective Written Evidence Final Filed – Appendix 4(e) pp. 268- paragraphs 6, 9, 10; pp. 269 – paragraph 4; pp. 270 – paragraphs 4-6; pp. 272 – paragraphs 10460.
78) . In addition, the Stó:lō Collective has clearly outlined a communication protocol and identified Stó:lō Collective representatives who would fill the gaps within Traditional Ecological Knowledge (TEK), and has continuously and repeatedly shared this information with Trans Mountain. Trans Mountain has continuously been in breach of its commitment with respect to this consultation.
79) Trans Mountain has at times suggested that consultation with a tribal group or an individual band represents engagement in a manner that represents the interests of all the members of
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34 the Stó:lō Collective. The members of the Stó:lō Collective are from several different tribes and different geographic parts of their traditional territory. Each band has accumulated TEK that is specific to its tribal and band customs, practices and traditions. Information gleaned by Trans Mountain from one tribe or band is not necessarily transferrable to all members of the Stó:lō Collective. Therefore, in order to obtain accurate information with respect to all members of the Stó:lō Collective it is vital for Trans Mountain to adhere to the communication protocol.
(b) Integrated Cultural Assessment 80) Trans Mountain was provided an Integrated Cultural Assessment (ICA), adopted by the thirteen First Nation bands that came together for the purposes of this process as the Stó:lō Collective. The ICA contained a wealth of technical, environmental and cultural information, including local and traditional knowledge. The ICA contains 89 specific recommendations, which can be broken down into 6 areas, each of which will be addressed below in greater detail:
I. Implementation of the Project II. Fisheries III. Forestry, Wetland and Vegetation IV. Socio-Cultural V. Economic and Community Development VI. Safety & Emergency Response VII. Concerns Identified by Trans Mountain but with Inadequate Response
(I) Implementation of the Project 81) Within the ICA, there a number of recommendations with respect to implementation of the Project. Recommendation #4 dealt with contract and team management and invoicing. Recommendations #10, 70, 71, 72, 77, 78 and 86 dealt with ongoing communication and liaison between Trans Mountain and the Stó:lō Collective. Recommendations # 21, 22, 32, 33, 58, 59, 63, 67, 68 and 89 dealt with ICA/CPCN Commitment tracking. Recommendations # 73 and 74 dealt with complaints registration.
For ICA recommendations see: Section 17 – Recommendations – Mitigations Trans Mountain TLRU and Supplemental Technical Reports – A3Z4Z2 – A3Z4Z5; For specific recommendations (the “89 recommendations”) see: A3Z4Z5 - pp. 161-186.61
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35 82) In response, Trans Mountain provided Commitment #896 states that it is committed to working in partnership with the Stó:lō Collective to develop a series of workshops to discuss questions and address concerns. The workshop series was to be confirmed in Q1. 2015.
For Trans Mountain Commitment #896 see: Document ID#: A4R6I5: TM Updated Commitment Table (pp. 1)62.
83) The Stó:lō Collective say that this is an inadequate response to our concerns. It is simply a commitment to work on setting up workshops to discuss. The Stó:lō Collective take the position that a commitment to talk about talking is not a commitment that meets the requirements of the NEB. A commitment to talk about talking fails to give even the appearance of a commitment. Even this flimsy and inadequate commitment has not been carried out.
84) In the August 12, 2015, NEB Draft Conditions, in overarching condition #2, stated that:
Trans Mountain must implement all of the commitments it made in its Project application, or as otherwise agreed to in the evidence it filed during the OH-001-2014 proceeding or in its related submissions.
85) The Stó:lō Collective submit that Trans Mountain is already in violation of overarching condition #2 in that commitments made to the Stó:lō Collective during the IR process were never incorporated by Trans Mountain into the August 12, 2015 Commitments Table, and in violation of those commitments, Trans Mountain has carried out environmental work of interest to the Stó:lō Collective in the territory of the members of the Stó:lō Collective without including Stó:lō Collective representatives.
(II) Fisheries 86) Within the ICA, there are a number of recommendations with respect to fisheries. Recommendations #9 and 19 dealt with review of stream crossing locations and crossing methods. Recommendations #5 and 11 dealt with contributions to Fisheries EPP development. Recommendation #6 dealt with input into locations for hydrostatic water withdrawal and discharge for the Vedder River, Fraser River and Coquihalla River. Recommendations #12, 17, 23 and 53 dealt with additional research and aquatic habitat off- sets. Recommendations #8 and 21 dealt with erosion and bank stability and restoration
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36 planning. Recommendations #2 and 88 dealt with the review of construction alignment sheets. Recommendations #22, 31, 60 and 82 dealt with review of access management & possible improvements. Recommendations #7, 10, 20, 84 and 85 dealt with review of Emergency Response Plans. Recommendations #13, 14, 15 and 16 dealt with monitoring of hydrostatic test water withdrawals/discharge, water crossings and restoration work.
For ICA recommendations see: Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 - Stó:lō Collective, Integrated Cultural Assessment (ICA)63
87) In response to the ICA recommendations #13, 14, 15 and 16, Trans Mountain stated in its IR Response dated March 31, 2015, that it remains committed to work with Stó:lō representatives to identify and hire qualified monitoring personnel and services from within S’ólh Téméxw.... and to understand existing capacity and availability of Stó:lō environmental monitors and where further environmental training could increase Stó:lō capacity, to support the provision of training in these areas.
For Trans Mountain’s IR response dated March 31, 2015 see: Document ID#: A4S7H3 – Appendix to letter to Sto:lo Collective.64
88) In response to ICA recommendation #16, Trans Mountain stated in its IR Response dated March 31, 2015, that it remains committed to work with Stó:lō representatives to identify and hire qualified monitoring personnel and services from within S’ólh Téméxw to provided services for reclamation and Post Construction environmental monitoring.
89) These commitments made by Trans Mountain in the March 31, 2015 IR responses were not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB. It is also worth noting that the Stó:lō Collective sent Trans Mountain a list of qualified planning and monitoring personnel on January 27, 2015.
Document ID # A4L 7C0 – Sto:lo Collective Written Evidence Final Filed – Appendix 4(e) pp. 125-20465
Document ID#: A4H9E3 – Trans Mountain Response to Sto:lo Collective IR No. 2, pg. 3 Response
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37 paragraph 2. 66
90) In response to all of the other fisheries concerns and recommendations, Trans Mountain relied on Commitment #896 and 895. As noted above with respect to implementation of the Project, Commitment 896 is a nothing more than a commitment to talk about talking. It is not a substantive response to the concerns of the Stó:lō Collective. Trans Mountain’s Commitment #895 states that all sensitive resources identified on the Environmental Alignment Sheets and tables, will be clearly marked before the start of clearing. Signs will be posted and Trans Mountain will provide construction schedules to Stó:lō communities.
For Trans Mountain Commitment #896 and #895 see: Document ID#: A4R6I5: TM Updated Commitment Table (pp. 1)67.
91) The central problem with Trans Mountain’s Commitment #895 is that to date none of the Stó:lō Collective sites have been clearly marked on the alignment sheets or tables. Clearly Trans Mountain’s Commitment #895 is dependent on including all sensitive resources. The fact that many other Stó:lō Collective sites are not included on the alignment sheets is a deficiency that invalidates the Commitment and must be addressed by the NEB.
(III) Forestry, Wetland and Vegetation 92) Within the ICA, there are a number of recommendations with respect to forestry, wetland and vegetation management. Recommendations #24, 28 and 32 dealt with timber clearing and EPP Planning. Recommendation #29 dealt with salvage of old growth cedar. Recommendations #30 and 35 dealt with wetland and right of way restoration planning. Recommendations #36 and 37 dealt with vegetation management. Recommendations # 23, 27, 28, 29, 35, 38 and 62 dealt with surveys of native vegetation areas including wetlands and Old Growth Management Areas (OGMAs). Recommendation #25 dealt with storm water runoff studies at Sumas. Recommendations #16, 26, 38, 39, 40, 41 and 43 dealt with post- clearing, construction and restoration monitoring. Recommendation #36 also dealt with herbicide use. Recommendations #2 and 24 dealt with review of construction alignment
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38 sheets.
For ICA recommendations see: Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 - Stó:lō Collective, Integrated Cultural Assessment (ICA)68
93) In response to the ICA recommendation #36, Trans Mountain referred to Commitments #895 and 896. Again we repeat the concern raised above with respect to fisheries and implementation; that #896 is nothing more than a commitment to talk about talking and that #895 is deficient because none of the Stó:lō Collective sites have been clearly marked on the alignment sheets or tables.
For Trans Mountain Commitment #896 and #895 see: Document ID#: A4R6I5: TM Updated Commitment Table (pp. 1)69.
94) We further note that in its March 31, 2015 IR response to ICA recommendation #36, Trans Mountain stated that in areas where herbicides are required the treatments will be implemented in accordance with Stó:lō accepted practices, regional and local best practices, municipal bylaws, provincial legislation and regulatory guidelines. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
For Trans Mountain’s IR response dated March 31, 2015 see: Document ID#: A4S7H3 – Appendix to letter to Sto:lo Collective.70
95) In response to ICA recommendation #35, in its March 31, 2015 IR response Trans Mountain stated that it will work to ensure Stó:lō representatives are part of the weed survey and treatment process. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
96) In response to ICA recommendations #23, 27, 28, 29, 35, 38, 62, 2, 25, 16, 26, 38, 39, 40, 41 and 43 Trans Mountain referred to Commitment #896. Again, we repeat the concern raised above with respect to fisheries and implementation; that #896 is nothing more than a
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39 commitment to talk about talking about forestry, wetland and vegetation.
97) In response to ICA recommendation #26, in its IR response of March 31, 2015, Trans Mountain stated that it remains committed to work with Stó:lō representatives to identify and hire qualified monitoring personnel and services from within S’ólh Téméxw.... and to understand existing capacity and availability of Stó:lō environmental monitors and where further environmental training could increase Stó:lō capacity to support the provision of training in these areas. Trans Mountain further stated that it remains committed to work with Stó:lō representatives to identify and hire qualified monitoring personnel and services from within S’ólh Téméxw to provide services for reclamation and Post Construction environmental monitoring. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB. Again it should be noted that the Stó:lō Collective provided a list of qualified Stó:lō personnel in January 2015.
For Trans Mountain’s commitment re hiring Stó:lō monitoring personnel and training see: Document ID# A4S7H3 Appendix to letter to Stó:lō Collective. pp. 1171.
98) As noted above with respect to fisheries, the Stó:lō Collective objects to Trans Mountain’s vague and inadequate commitments to us in comparison to commitments made to other groups. Some of the commitments made by Trans Mountain to these other groups address the same concerns raised by the Stó:lō Collective. We object to the fact that Trans Mountain appears to be ignoring the Stó:lō Collective’s concerns. This is unacceptable. We provide the following examples of commitments made by Trans Mountain to other groups with respect to wetlands, water crossings, herbicides and groundwater.
To Which Trans Mountain Commitment Intervenor
Peters Band #949 - In the event of groundwater contamination caused by the Trans Mountain Pipeline system, KMC will work with the leadership of the Peters Band to identify surplus capacity from other drinking water sources in the area, while suitable interim water supply replacement alternatives are established and implemented. Shxw’ōwhámel #894 - In the event of a leak or rupture from a pipeline or facility within Shxw’ōwhámel First Nation First Nation (SFN) Traditional territory, Trans Mountain Pipeline ULC (Trans Mountain) will follow the remedial steps outlined in the National Energy Board (NEB) Remediation Process Guide (2011) to ensure that the groundwater contamination is remediated to applicable remediation standards.
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40
For evidence of Trans Mountain’s Commitments to other groups see: Document ID#: A4R6I5: TM Updated Commitment Table72.
99) Trans Mountain has made no such commitments to the Stó:lō Collective.
(IV) Socio-Cultural 100) Within the ICA, there are a number of recommendations with respect to socio-cultural issues. Recommendation #42 dealt with changes to alignment to avoid cultural landscape features. Recommendations #44, 45, 46, 48, 49, 50, 51, 52 and 55 dealt with Cultural Heritage Management Plans including archaeology, spiritual and sacred sites and cultural activities. Recommendations #47, 55, 59, 64, 65 and 77 dealt with communication plans that respect and accommodate interests related to governance and inter-nation gathering/relations. Recommendations #44, 45, 49,50, 60, 66 and 82 dealt with access management plans. Recommendation #54 dealt with the cultural heritage survey. Recommendations #54, 56 and 57 dealt with cultural heritage monitoring.
For ICA recommendations see: Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 - Stó:lō Collective, Integrated Cultural Assessment (ICA)73
101) In response to ICA recommendations #42, 44, 45, 46, 47, 48, 49, 50, 51, 52, 54, 55, 56, 57, 59, 64, 65, 66, 77 and 82 and Trans Mountain referred to Commitment #896. Again, we repeat the concern raised above with respect to implementation, fisheries, forestry, wetland and vegetation; that #896 is nothing more than a commitment to talk about talking. Trans Mountain’s commitment #895 is deficient because none of the Stó:lō Collective sites have been clearly marked on the alignment sheets or tables.
For Trans Mountain Commitments #896 and #895 see: Document ID#: A4R6I5: TM Updated Commitment Table (pp. 1)74.
102) In response to ICA recommendation #42, in its IR response of March 31, 2015, Trans Mountain stated that it strives to have all sacred sites identified prior to construction, in order to mitigate, and that all mitigation will be developed in consultation with the Stó:lō Collective. Further, Trans Mountain stated that if sites are protected under the Heritage Conservation Act, then mitigations will be developed with the British Columbia Archaeology
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41 Branch in conjunction with the Stó:lō Collective. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
For Trans Mountain’s IR response of March 31, 2015 see: Document ID#: A4S7H3 – Appendix to letter to Sto:lo Collective.75
103) In response to ICA recommendation #45, in its IR response of March 31, 2015, Trans Mountain stated that it will recognize place names (such as on Project maps, signs and fencing) during the course of the Project. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
104) In response to ICA recommendation #56, in its IR response of March 31, 2015, Trans Mountain stated that it commits to the protection of Spiritual and Cultural sites. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB. Trans Mountain has not included this information in their draft EPPs or alignment sheets.
105) In response to ICA recommendation #60(f), in its IR response of March 31, 2015, Trans Mountain stated that the Traffic and Access Control Management Plan (“TACMP”) will prohibit parking/staging areas along key access routes to Big houses, boat launches, trailheads near bathing sites. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB. Trans Mountain has not included any of this information in their draft EPPs or alignment sheets.
106) In response to ICA recommendation #65, in its IR response of March 31, 2015, Trans Mountain stated that it was committed to working with Stó:lō representatives to minimize scheduling conflicts [cultural gatherings, war canoe races] if dates are provided to TM 6 months in advance. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated
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42 July 22, 2015, which Trans Mountain submitted to the NEB. Trans Mountain has not included any of this information in their draft EPPs or alignment sheets.
107) In response to ICA recommendation #77, in its IR response of March 31, 2015, Trans Mountain stated that it will engage with Stó:lō to identify unique cultural and community sensitivities that should be considered in the Environmental Orientation for Project teams conducting work in S’ólh Téméxw. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
108) The Stó:lō Collective have experience to back up our concerns with respect to the protection of our cultural sites. As identified in the ICA, McCallum Stream runs into Kilgard Creek, which runs into the Sumas River. This stream was devastated by Trans Mountain’s existing pipeline. It is an important cultural bathing site for Stó:lō people. Trans Mountain committed to restore it but did not do that. Instead of vegetation replacement and watercourse management plans, they replaced it with riprap. Now the bank is a collection of boulders. This was not fulfillment of their commitment to return the banks to their previous state. The banks are now entirely different, which has negatively affected these important cultural bathing sites.
For evidence with respect to use of riprap see: https://docs.neb-one.gc.ca/ll- eng/llisapi.dll/fetch/2000/90464/90552/548311/956726/2392873/2449925/2450638/2871897/C288-29-2_- _Pearson_Ecological__to_PipeUp__KM_Stream_Crossing_Letter_- _A4W0R7.pdf?nodeid=2872110&vernum=-2; https://docs.neb-one.gc.ca/ll- eng/llisapi.dll?func=ll&objId=2871897&objAction=browse&viewType=1
For evidence with respect to Scott Resources environmental management plan for site see: https://docs.neb-one.gc.ca/ll- eng/llisapi.dll/fetch/2000/90464/90552/548311/956726/2392873/2449925/2450638/2871897/C288-29-3_- _PIPE_UP_Network_Supplemental_Written_Evidence_Attachment_1_to_6_- _A4W0R8.pdf?nodeid=2871778&vernum=-2
109) As noted above with respect to fisheries and wetlands, the Stó:lō Collective objects to Trans Mountain’s vague and inadequate socio-cultural commitments to us when we review commitments made to other groups. Some of the commitments made by Trans Mountain to these other groups address the same concerns raised by the Stó:lō Collective. We object to the fact that Trans Mountain appears to be ignoring the Stó:lō Collective’s concerns. This is unacceptable. We provide the following examples of commitments made by Trans Mountain
43 to other groups with respect to socio-cultural issues.
To Which Intervenor Trans Mountain Commitment
Metis Nation of Alberta #691 - Metis Nation of Alberta Gunn Metis Local 55 will be informed and Gunn Metis Local 55 consulted regarding all sacred sites that may be discovered during construction of the Project through their traditional territory
Tsawout First Nation #936 - Trans Mountain will continue to engage with Tsawout First Nation, with any additional site-specific mitigation measures resulting from this engagement being provided in the updated Environmental Protection Plans. Any additional information that Tsawout First Nation is able to provide to Trans Mountain, will also be considered in Project planning and design Tsawout First Nation #938 - Trans Mountain is prepared to meet with the Tsawout First Nation following receipt of its TRMU to review the findings of the report. Trans Mountain is willing to review and incorporate any appropriate mitigation measures into the updated environmental
Tsawout First Nation #937 - Trans Mountain will continue to engage Tsawout First Nation through all phases of the Project. Traditional resource use information received from Tsawout First Nation will be reviewed in order to confirm literature results and mitigation measures including those found in the Environmental Protection Plans. Any additional site-specific mitigation measures resulting from these studies will be provided in the updated Environmental Protection Plans. Upper Nicola Band #599 - Trans Mountain is committed to the review of the information on hunting, trapping, gathering or fishing in the area of the Coldwater and Nicola Rivers upon receipt for consideration in Project planning and continued engagement with Upper Nicola to discuss mitigation measures to minimize potential impacts. Trans Mountain notes that the construction planning schedule requires that this policy be received no later than May 1, 2015.
For evidence of commitments made to others see: Document ID#: A4R6I5: TM Updated Commitment Table76.
110) Trans Mountain has made no such commitments to the Stó:lō Collective. The Stó:lō Collective has been trying to encourage Trans Mountain to consider important cultural information in their planning to avoid sacred sites and harvesting areas since January 2015. To date, Trans Mountain has not addressed concerns related to Stó:lō cultural sites in the Project area and has not included appropriate cultural protection or mitigation plans in their EPPs.
(V) Economic and Community Development 111) Within the ICA, there are a number of recommendations with respect to economic and community development issues. Recommendations #67, 68, 69, 75 and 76 dealt with review of Aboriginal Training and Procurement Policy (construction, operation and maintenance –
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44 brushing – vegetation removal - and review of the social monitoring plan). Recommendations #22, 31, 60, 66 and 82 dealt with traffic and access planning. Recommendation #56 dealt with community contractors carrying out work such as security (see TMEP contract opportunity list). Recommendations #58 and 59 dealt with community investment. Recommendations #61 and 65 dealt with a worker accommodation strategy. Recommendations #70, 71 and 72 dealt with management of skills inventory/database management, contract advertising and tracking. Recommendations #79, 80, 81, 86 and 87 dealt with public health. Recommendation #83 dealt with policing & security.
For ICA recommendations see: Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 - Stó:lō Collective, Integrated Cultural Assessment (ICA)77
112) In response to ICA recommendations #22, 31, 56, 58, 59, 60, 61, 65, 66, 70, 71, 72, 79, 80, 81, 82, 83, 86 and 87 Trans Mountain referred to Commitment #896. Again, we repeat the concern raised above with respect to implementation, fisheries, forestry, wetland and vegetation, and socio-cultural; that #896 is nothing more than a commitment to talk about talking.
For Trans Mountain Commitment #896 see: Document ID#: A4R6I5: TM Updated Commitment Table (pp. 1).78
(VI) Safety and Emergency Response 113) Within the ICA, there are a number of recommendations with respect to safety and emergency response issues. Recommendations #20 and 57 dealt with review of Emergency Response Plans. Recommendations #10, 11 and 57 dealt with review of notification procedures. Recommendation #73 dealt with compensation. Recommendation 42 dealt with remediation of the landscape immediately in response to a spill/leak. Recommendations #18, 84, 85 dealt with annual training to be first responders.
For ICA recommendations see: Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 - Stó:lō Collective, Integrated Cultural Assessment (ICA)79
114) In response to ICA recommendations #10, 11, 57 and 73 in its IR response of March 31, 2015, Trans Mountain stated that in the event of a spill in S’ólh Téméxw, Stó:lō
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45 representatives will be invited to participate in United Command and be part of the incident Command Structure (ICS). This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table, Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
For Trans Mountain’s IR response of March 31, 2015 see: Document ID#: A4S7H3 – Appendix to letter to Sto:lo Collective.80
115) In response to ICA recommendation #18 in its IR response of March 31, 2015, Trans Mountain stated that a one-day Community Awareness and Emergency Response (CAER) will be provided at no cost, but this session will not include training content that will qualify attendees to participate safely in the response to a pipeline spill of accident. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table; Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
116) In response to ICA recommendation #10 in its IR response of March 31, 2015, Trans Mountain stated that prior to the pipeline commencing operation, Trans Mountain will commit to providing an overview of all the parts of a Spill Contingency Plan to interested Stó:lō personnel. This commitment made by Trans Mountain in the March 31, 2015 IR responses was not included in the Updated Commitments Tracking Table; Version 3 dated July 22, 2015, which Trans Mountain submitted to the NEB.
117) Trans Mountain made no response to ICA recommendations #20, 42, 84 & 85.
(VII) Concerns Identified by Trans Mountain but with Inadequate Response 118) Some members of the Stó:lō Collective (the Ts’elxwéyeqw Tribe) raised several concerns in the Qwō:qwel Engagement Initial List of Concerns to which Trans Mountain has never responded.
Effect on value of First Nations Land No response Impacts of land loss for First Nations No response Expropriation of First Nations lands No response Economic benefit analysis for Certificate of Possession lands on reserve No response Plant gathering areas being affected No response Connection with the land being impacted No response Air quality impacts, especially with a spill No response
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46 Is China refining the oil? Will this make it even dirtier? No response How do earthquakes affect pipelines No response How long do the pipes last with heavy oil in them? No response Who is responsible for the contamination from pipes that will be left in the No response ground when not being used Is there compensation if there is a spill No response
For evidence of concerns raised in the Qwō:qwel Engagement Initial List of Concerns see: Document ID# A3S2H1, Volume 5D1 4 of 4 – Traditional land Resource – pp. 27 – 7881.
119) Within the Indicator Report, as adopted by the Stó:lō Collective, several concerns were raised. Trans Mountain has never responded at all to these concerns.
Number of salmon-bearing waterways within assessment areas No response Number of waterways bearing other fish species critical to habitat and Stó:lō No response i.e. Eulachon Potential loss of fish for food, social, ceremonial, and commercial No response Impacts to over 200 identified fishing sites No response Impact of air contaminants on dry rack fishing No response Loss of medicine harvesting sites No response Noise and vibration impacting fish and fish habitat No response Noise impacting Stó:lō spiritual activities No response Increased infringement and occupation into sacred areas and spiritual sites No response Impact on water quality, quantity, flow, diversions – temporary or long-term – No response impacting spiritual sites Impact environmentally and socially on spiritually significant sites No response Impacts on trails, contemporary or historic use for hunting, gathering, No response spirituality etc. Loss of homes through expropriation No response Aquifer contamination No response Impact on burial and grave sites No response
For evidence of concerns raised in the Indicator Report see: Document ID3’s: A3A4Z2 – A3Z4Z5 - Traditional Land and Resource Use and Supplemental Technical Reports – Traditional Land Use Part 1 (100-156); Parts 2 – 4.82
120) Commitments made by Trans Mountain have not been carried out or are deficient. Similar commitments have been made to other communities (many of which are not even on the route).
For evidence of commitments made to others see: Document ID# A4R6I5 – Commitment Table version 383.
121) Therefore, the NEB cannot determine responses to Issues #4, #9 and #10 because it is lacking evidence to determine effects on the members of the Stó:lō collective; specifically the potential environmental and socio-economic effects, any cumulative environmental
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47 effects (Issue #4), and potential impacts of the Project on Aboriginal interests (Issue #9) and the potential impacts of the Project on landowners and land use (Issue #10).
(B) Deficiencies in the Proposed Terms & Conditions 122) The Stó:lō Collective provides the following comments on the August 12, 2015 Terms and Conditions. Some of the key issues pertaining to the Terms and Conditions are as follows:
a) 7. the complaint record should include Aboriginal/First Nations complaints given the nature of the work and the commitment to work around the scheduling of significant cultural events b) 8. A fulsome commitment tracking table should be supplied prior to recommendation of the project by the NEB, to ensure accurate baseline information c) Aboriginal Communities/First Nations should have opportunity to review and sign/approve by the Aboriginal/First Nation beneficiary to whom it relates, prior to submission of anything the includes issues and concerns of Aboriginal/First Nation communities for accuracy. d) 67. This should include TEK from local aboriginal communities and as such should require review and be signed/approved by the Aboriginal/First Nation to whom it relates prior to submission e) 99. Due to the nature and cultural significance of these species and the relationship to Stó:lō, TEK and TK, and aboriginal concerns should be included and as such reports and findings should be reviewed and signed/approved by Stó:lō prior to submission f) 100 TEK and TK must allow for review and approval by the Aboriginal/First Nation to whom it relates prior to submission to ensure appropriate understanding and inclusion of said TEK/TK g) 105. This should include concerns and issues raised by Aboriginal Communities/First Nations should be reviewed and signed/approved by the Aboriginal/First Nation to whom it relates, prior to submission h) 82. This should include TEK/TK from local aboriginal communities, mitigation strategies that incorporate TK and Consultation with Aboriginal/First Nation communities. As such should heritage resource site identification and mitigation require collaboration, review of reporting and alignment sheets, and must be signed/approved by the Aboriginal/First Nation to whom it relates prior to submission. Not all important heritage or archaeological sites are known, or protected, by the Archaeology Branches, and First Nations often have their own mitigation and protection measures that are culturally appropriate. Note: this is a commitment made to Stó:lō by Trans Mountain. i) 84. This should require review and be signed/approved by the Aboriginal/First Nation to whom it relates, prior to submission j) Overall a general lack of inclusion of Aboriginal communities and their local knowledge in area of geo-hazards and natural hazard assessments, local geo-morphology, river systems and connections, plants and vegetation, wildlife, and so forth, nor is there inclusion in complaints recording, risk assessment, or improvements to TMEP’s ERP, EMP, or EPP’s
48 k) 108. This does not address concerns for compensation to the FSC fishery and all “non- commercial” assets l) 116. This should include local aboriginal communities, and Consultation with Aboriginal/First Nation communities. As such should require review of reporting, and must be signed/approved by the Aboriginal/First Nation to whom it relates prior to submission
For full review of the Terms and Conditions, please see Appendix 1.
123) Our overall observation about the Terms and Conditions is to note that Trans Mountain commitments are vague when it comes to “Aboriginal people” and they have has been reluctant to formalize commitments to the Stó:lō Collective. As noted above, this is in direct contrast to commitments Trans Mountain has made to other Aboriginal groups. Trans Mountain has been reluctant to directly involve Stó:lō technical and cultural experts in Project mitigation and Environmental Protection Planning (EPP development), emergency response planning, or environmental survey work in order to mitigate concerns pertaining to traditional fisheries, spiritual and cultural sites, wetlands, old growth forests, communication protocols, capacity development, economic development or emergency response procedures. The Terms and Conditions should require Trans Mountain to involve Stó:lō directly in these ongoing aspects of the Project.
124) Trans Mountain has suggested to the Stó:lō Collective that mitigation planning and monitoring is part of the mutual benefits agreements. This is unacceptable. Mitigation and monitoring should not in any way be part of a “benefits” agreement. Mitigation and monitoring are tied to the effects of the Project, not to the benefits that may or may not be negotiated with the proponent. The Stó:lō Collective submits that mitigation and monitoring planning especially with respect to the interests of the members of the Stó:lō Collective should be included within the Terms and Conditions. These should be incorporated into the early stages of Project development and planning. Identification of Aboriginal interests and mitigation measures should not arise as a reward for entering into an agreement with a private party.
For evidence that Trans Mountain sees Stó:lō involvement in mitigation planning and monitoring to be part of a mutual benefit agreement see: Document # A4L7C0 - Stó:lō Collective Written Evidence – Appendix 4(e) pp.264-27384
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49 125) That said, we are concerned that the absence of Stó:lō Traditional Ecological Knowledge (TEK) in the TMEP technical documents and the inaccurate portrayal of spiritual and cultural use, interests, rights and title of the members of the Stó:lō Collective within S’ólh Téméxw (the traditional territory of the members of the Stó:lō Collective) has left the NEB with the impression that there either are no such interests or that Trans Mountain has effectively consulted and integrated them into its plans. As noted above, the interests of the members of the Stó:lō Collective have not been addressed or included in Trans Mountain’s commitments and therefore are not sufficiently included in the Terms and Conditions.
126) The Project will have a long lifespan. The Board has incorporated requirements for Trans Mountain to revisit its operational practices and adjust to future needs and demands. But the constitutional requirement for Aboriginal consultation is ongoing throughout the life of the Project. The Terms and Conditions should be amended to include an ongoing requirement to meaningfully consult and accommodate the members of the Stó:lō Collective throughout the life of the Project.
127) In meetings and in writing, the Stó:lō Collective has several times objected to the approach Trans Mountain uses in terms of Aboriginal participation and TEK integration. One of the issues the NEB must determine, stated issue #9, is the potential impacts of the Project on Aboriginal interests. In order to determine this issue, the NEB requires data about the interests of the members of the Stó:lō Collective and potential impacts. The interests of the members of the Stó:lō Collective must be considered in all aspects of the development of the Terms and Conditions for the Project. This has not occurred because Trans Mountain has, by its own admission, stated that “no information from the ICA has been integrated into Project EPP’s and other management plan” and “doesn’t feel it is necessary to include specific First Nations at this time”. The Terms and Conditions should be amended to include an ongoing requirement to integrate information from the ICA into the Project EPP’s and other management plans and to meaningfully address the interests of the members of the Stó:lō Collective in all aspects of the Project mitigation and monitoring planning.
For evidence of Trans Mountain’s admissions about excluding Stó:lō evidence see: Document ID#: A4L7C0, Appendix 4(e), p. 265; Document ID#A4L7C1, Appendix 4(f), p. 2-385
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50
128) The Stó:lō Collective is deeply concerned about the number of plans that do not require Aboriginal consultation or TEK. The following is a list that highlights a few specific plans that will be developed without input from the Stó:lō Collective, even though the issues were raised in the ICA, local knowledge/TEK was provided to Trans Mountain, and the Collective has requested direct participation or a specific management response from Trans Mountain. For example:
#67. Hydrology of notable watercourse crossings – The Stó:lō Collective has demonstrated specific knowledge related to flood frequency and complex hydrology, which was highlighted in the ICA, section 5, tables 5-4 and 5-6. We submit that this Term and Condition should be redrafted to include a requirement to protect cultural resources, consult with the Stó:lō Collective, to include TEK and other Aboriginal knowledge, and also to include any issues or concerns raised by the Stó:lō Collective regarding these works and how Trans Mountain has addressed or responded to them.
For evidence about Stó:lō knowledge of watercourse crossings see: Document ID#: A3Z4Z4, – Traditional Land Use Part 3 of 4 ICA, section 5, tables 5-4 and 5-686
#82. Heritage resources – The NEB does require Trans Mountain to consult with Aboriginal communities to include Aboriginal knowledge, TEK and First Nation Heritage Policies. Condition 82 (Appendix A) as set out by the NEB explicitly and substantially limits this requirement. The Stó:lō Heritage Policy Manual, as a First Nation Heritage Policy, includes a permitting system that is required as a factor of clearance for conducting archaeological and heritage work within territory of the members of the Stó:lō Collective. It also recognizes and defines a range of heritage site types well beyond British Columbia’s Heritage Conservation Act, which is narrow in scope and largely focuses on archaeological sites. Condition 82 specifies that Trans Mountain must file with the NEB confirmation that it has obtained all of the required archaeological and heritage resource permits and clearances from the Alberta and British Columbia provincial governments. It makes no reference to First Nation permits and clearances, and thus excludes the Stó:lō Heritage Policy Manual and Stó:lō Heritage
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51 Investigation Permit system. In doing so it constitutes an inherent contradiction in the NEB’s instructions for consultation and terms and conditions for approval, specific to the treatment of heritage sites. In contradiction with its own instructions, the NEB excludes Stó:lō involvement and dramatically limits the substance of Stó:lō heritage sites, many of which are not archaeological in nature, considered in the impact assessment and planning process. While the NEB vests heritage site protection in the British Columbia legislation and administrators, the Archaeology Branch, such protection cannot be left to the discretion of the provincial Archaeology Branch because it does not recognize many types of First Nation heritage sites.
#84. TLU and TMRU Investigation Report – The Stó:lō Collective’s experience has been that Trans Mountain has consistently done an inaccurate and inadequate job of “summarizing” TLU and TEK information. Trans Mountain misrepresented our data set and made unilateral decisions to eliminate data or filter it without discussing it with our team. This Term and Condition should be amended to ensure that First Nations have the opportunity to review these reports to ensure all relevant information is included before they become part of the NEB record. This should be an ongoing requirement.
#99. Nooksack Dace and Salish Sucker Management Plan – The Stó:lō Collective submits that Trans Mountain should be required to consult with the Collective and ensure that local knowledge and TEK is considered in the Management plan. This Term and Condition should be amended to ensure that First Nations have the opportunity to review to ensure all relevant information is included before these reports become part of the NEB record.
For evidence about Stó:lō knowledge of Nooksack Dace and Salish Sucker Fish see: Document ID#: A3Z4Z4 – Traditional Land use Part 3 of 4, ICA, section 5, tables 5-4, p. 5287
#108 – Financial Assurances Plan – This Term and Condition states that Trans Mountain must provide $1.1 billion for cleanup, remediation and other damages. This is not enough money. Cleaning up the Exxon Valdez disaster took four summers and cost approximately $2 billion, according to the Exxon Valdez Oil Spill Trustee Council. That
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52 was in 1989 dollars. In 2015 dollars, that amount would be approximately $4 billion. The Stó:lō Collective submits that the amount should be substantially raised to $4 billion. We further suggest that the Terms and Conditions should contain an indexing clause and a “reopener” window. After a spill, there would be a window of time during which government could claim up to $100 million in additional payments from Trans Mountain to restore resources that suffered a substantial loss or decline as a result of the oil spill and which were not foreseen at the time the initial Terms and Conditions were set out.
#121. Evacuation Plans – There is no requirement for Trans Mountain to consult or accommodate the concerns of Sumas First Nation. In light of the additional written evidence we filed and the history of poor emergency response procedures/notifications with Sumas, Sumas should participate in the development of these plans. This Term and Condition should be amended to ensure that Sumas has the opportunity to participate in the development of the plans and to review the evacuation plan to ensure all relevant information is included before these reports become part of the NEB record.
#132. Post construction noise surveys – Sumas First Nation – Currently this Term and Condition does not require specific reporting on Sumas First Nation issues. This should be amended to ensure that Sumas’ issues are included in the surveys and that Sumas has the opportunity to review to ensure all relevant information is included before these noise surveys become part of the NEB record.
#134. Natural Hazard Assessment – There is currently no requirement for Trans Mountain to consult First Nations living in these areas. Sumas First Nation is fully aware of any hazards that have been occurring or likely to occur. This Term and Condition should be amended to require Trans Mountain to address Aboriginal concerns or and include local knowledge/TEK in their survey.
129) We also note that there are no commitments from Trans Mountain on any of the following issues:
a) to train First Nations as First Responders to an oil spill, b) to have First Nations as co-managers along the line where they are most impacted, c) to hire or direct award any percentage of local/Stó:lō
53 workers/companies/organizations; or d) to Financial Liability and compensation for First Nations Fisheries (FSC), equipment, income, etc. in the event of a spill.
130) Our final submission on the Terms and Conditions is to note that the NEB appears to be relying on Trans Mountain to fully understand and accurately incorporate TEK. Experience with Trans Mountain to date has not shown this to be the case. As noted above, Trans Mountain has specifically stated that it has no intention of doing this and that unless NEB insists they will not correct or adjust their current behavior. The NEB needs to insist that Trans Mountain change its behavior. Unless this is done, the NEB will not be able to address issue #9. The current Terms and Conditions should be amended to require Trans Mountain to work with the Stó:lō Collective as suggested above.
54 Part Six: Legal Argument
131) One issue the NEB must be informed of and fully understand is the impacts that the proposed Project will have on the lands, water, and resources of traditional territory of the members of the Stó:lō Collective, and the way in which these impacts will affect the Aboriginal rights, title and interests of the members of the Stó:lō Collective. This is in the Board’s List of Issues - #9.
132) The Stó:lō Collective submits that, because of the procedural flaws in the review process, the NEB cannot recommend that the Project, as applied for, can be determined to be in the public interest.
(A) Public Interest 133) Section 52 of the NEBA requires a determination with respect to "the present and future public convenience and necessity" of the proposed Project pipeline and associated facilities before a certificate can be issued under the Act. The “present and future public convenience and necessity” test has been equated with “public interest”.88
134) Pursuant to s. 52(2)(e) of the NEBA, in making its recommendation, “the Board shall have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant, and may have regard to … any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.”
135) In evaluating the public interest and overall public good of a Project, the Board must consider and weigh the negative aspects and impacts:
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. As a regulator, the Board must estimate the overall public good a Project may create and its potential negative aspects, weigh its various impacts, and make a decision.89
136) As a component of its public interest analysis, the Board must weigh and analyze the nature of the Aboriginal concerns and any negative impacts on these interests:
88 NEB Reasons for Decision, Emera Brunswick Pipeline Co., GH-1-2006, May 2007, para. 43. 89 NEB Reasons for Decision, Emera Brunswick Pipeline Co., GH-1-2006, May 2007, para. 41.
55 The Board weighs the overall public good a Project may create against its potential negative aspects, including any negative impacts on Aboriginal interests, and makes its decisions in accordance with the public interest. As part of the decision-making process, it takes into consideration the potential environmental and social impacts and the potential for mitigation of those impacts.90
137) Thus, in its public interest analysis, the NEB must consider any negative impacts to Aboriginal rights, as well as potential environmental and social impacts and whether these negative impacts can be mitigated.91 In this process, the Board not only has discretion to consider “any public interest” that it believes may be affected by the issuance of a certificate or the dismissal of an application,92 but has also been specifically directed by its enabling legislation to reach a conclusion in its report on the implications of the Stó:lō Collective’s strength of claim and the potential adverse impacts of the proposed Project on the Aboriginal rights and title of the members of the Stó:lō Collective, and to make recommendations for accommodative avoidance or mitigation measures.93
138) The Board must also, in weighing the public interest, consider the risks to the health and safety of local populations, including residents of Stó:lō villages who will live in close proximity to the proposed Project.94
139) The proposed Project represents unique circumstances, including the transportation of highly toxic hydrocarbons through highly abundant, diverse, and complex yet fragile ecosystems, such as in the Fraser River watershed, and across lands and waters to which the members of the Stó:lō Collective have proven Aboriginal fishing rights95 and asserted other Aboriginal rights and title.
140) Members of the Stó:lō Collective have used the lands and waters where the proposed Project will be situated for subsistence, economic, spiritual, cultural and other purposes for thousands of years and still use them in this way.
Integrated Cultural Assessment Report - Document ID# A3Z4Z2 (pp. 100 – 156), A3Z4Z3; A3Z4Z4; A3Z4Z5 -Integrated Cultural Assessment (ICA)96
90 NEB Reasons for Decision, Enbridge Southern Lights LP, OH-3-2007, February 2008, at p, 10. 91 NEB Reasons for Decision, Enbridge Southern Lights LP, OH-3-2007, February 2008, at p, 12. 92 NEB Reasons for Decision, Nova Gas Transmission Ltd., GH-001-2012, January 2013, at p. 41. 93 Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, ss. 4(1)(b) and 29(1)(a) (CEAA) 94 CEAA, s. 4(2). 95 R v Van der Peet, [1996] 2 SCR 507 at para 30 [Van der Peet] 96 https://docs.neb-one.gc.ca/ll-eng/llisapi.dll?func=ll&objId=2487587&objAction=browse&viewType=1
56 141) In light of these circumstances, the Board’s public interest determination should consider and ascribe a substantial weight to the proven Aboriginal rights of the members of the Stó:lō Collective, asserted Aboriginal rights and title as well as their interests, traditional use, stewardship obligations and cultural heritage. The stewardship obligation of the members of the Stó:lō Collective is based in a concern for the environment founded on their identity and cultural heritage, which is fundamental to the cultural integrity of the Stó:lō people.
(B) The Constitutional Framework 142) In addition to the legislative, regulatory and policy requirements governing this review process, there are also relevant constitutional considerations. These considerations are over and above the statutory obligations of the Board.
(i) Aboriginal Rights 143) Section 35(1) of the Constitution Act, 1982 provides that:
The existing Aboriginal and Treaty rights of the Aboriginal peoples of Canada are hereby recognized and affirmed.97
144) Aboriginal peoples existed long before Europeans settled in North America. Aboriginal rights exist because of prior use and occupation and are recognized and affirmed in Canadian law, not as a result of governmental recognition, but because they continue to exist and were not extinguished upon British or French assertions of sovereignty or established governmental authority. This was affirmed by the Supreme Court of Canada in R v Van der Peet in which Chief Justice Lamer, stated,
In my view, the doctrine of Aboriginal rights existed, and is recognized and affirmed by s. 35(1), because of one simple facts: when Europeans arrived in North America, Aboriginal peoples were already here, living in communities on the land, and participating in distinctive cultures, as they have done for centuries.98
145) Aboriginal rights are sui generis in nature. They arise from the prior use and occupation
of land.99 They are afforded priority and constitutional protection through section 35(1) of the Constitution Act, 1982. The honour of the Crown is engaged in its dealings with
97 Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 1, s. 35(1). 98 Van der Peet, at para 30. 99 R v Secretary of State for Foreign and Commonwealth Affairs; Ex parte Indian Association of Alberta, [1982] 2 All ER 118 (CA) (UK), [1981] 4 CNLR 86; St Catherine’s Milling and Lumber Co v The Queen (1888), 14 App Cas 46, [1888] JCJ No 1 (PC).
57 Aboriginal peoples.100
146) Aboriginal rights must be interpreted flexibly in order to permit their evolution. In other words Aboriginal rights are not “frozen in time”. The Supreme Court of Canada has said that Aboriginal and Treaty rights much be given a “generous, liberal interpretation”. Aboriginal rights are to be construed in a “purposive way”, meaning they are to be understood in light of the right they are protecting.101
147) Aboriginal rights have been characterized as falling along a spectrum. At one end of the spectrum lie practices, traditions and customs that are integral to the distinctive Aboriginal group asserting the right.102 In the middle are activities that take place on the land and are intimately related to the land but which fall short of title. Falling on the other side of the spectrum is Aboriginal title.103
148) The test for Aboriginal rights is whether the rights in question are supported by the existence of a pre-contact practice, tradition or custom that is integral to the distinctive culture of the Aboriginal group.104 The Supreme Court of Canada has explained that, to be integral to the distinctive culture of the Aboriginal group, the rights have to be of central significance to the Aboriginal group’s culture. The practices do not have to be distinct or unique to that particular Aboriginal group. Practices that are undertaken for the purpose of survival can satisfy the requirements.105
149) Self-government is a form of Aboriginal right that is protected by section 35 of the Constitution Act, 1982.106 Constitutional protection of Aboriginal people's inherent right to self-government was also recognized by the British Columbia Supreme Court in Campbell v British Columbia (Attorney General).107
100 R v Badger, [1996] 1 SCR 771 at para 78, [1996] SCJ No 39. 101 Sparrow, at 1106 102 Delgamuukw v British Columbia, [1997] 3 SCR 1010, at para 138, [1997] SCJ No 108 [Delgamuukw] 103 Delgaummukw, at paras 2, 137; citing from R v Adams, [1996] 3 SCR 101, 138 DLR (4th) 657 104 Van der Peet, at paras 45-47 105 Van der Peet, at para 45,172; R v Sappier; R v Gray, 2006 SCC 54 at para 38,. 106 R v Pamajewon [1996] 2 SCR 821 at para 27. 107 Campbell v British Columbia (Attorney General), 2000 BCSC 1123 at paras 180-181, [2000] BCJ No 1524 [Campbell]
58 150) With respect to Aboriginal title, the Supreme Court of Canada has described that right as follows:
Aboriginal title is a right in land and, as such, is more than the right to engage in specific activities which may be themselves Aboriginal rights. Rather, it confers the right to use land for a variety of activities, not all of which need be aspects of practices, customs and traditions which are integral to the distinctive cultures of Aboriginal societies. Those activities do not constitute the right per se; rather, they are parasitic on the underlying title.108
151) Aboriginal title includes the right to decide the exclusive uses to which land will be put, and includes a right to benefit economically from the land and its resources.109 Aboriginal title derives from the exclusive occupation and use of the land by Aboriginal peoples before European settlers arrived.
152) The date of sovereignty is a legal question based on when the Crown gained effective sovereignty over land. In British Columbia, the date of sovereignty is usually considered to be 1846.110
153) In Tsilhqot’in v. British Columbia the Supreme Court of Canada held that “the title holders have the right to the benefits associated with the land — to use it, enjoy it and profit from its economic development. As such, the Crown does not retain a beneficial interest in Aboriginal title land.”
Aboriginal title confers ownership rights similar to those associated with fee simple, including: the right to decide how the land will be used; the right of enjoyment and occupancy of the land; the right to possess the land; the right to the economic benefits of the land; and the right to pro-actively use and manage the land.111
154) Aboriginal title is not confined to specific sites such as villages, or farms. The Supreme Court of Canada expressly overruled the BC Court of Appeal when it rejected a territorial approach to Aboriginal title.
Occupation sufficient to ground Aboriginal title is not confined to specific sites of settlement but extends to tracts of land that were regularly used for hunting, fishing or otherwise exploiting resources and over which the group exercised effective control at the time of assertion of European sovereignty.112
155) Aboriginal title has an important restriction. It cannot be developed or misused in a way
108 Delgamuukw, at para 111 109 Delgamuukw, at paras 117-118, 124, 166 110 Delgamuukw, at paras 144-145; Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73 [Haida]. 111 Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at para 73 and see paras 70-71 [Tsilhqot'in]. 112 Tsilhqot'in, at para 50 and see also paras 42-43 .
59 that would substantially deprive future generations of the benefit of the land.113 The right to control the land conferred by Aboriginal title means that governments and others seeking to use the land must obtain the consent of the Aboriginal title holders. If the Aboriginal group does not consent to the use, the government’s only recourse is to establish that the proposed incursion on the land is justified under s. 35 of the Constitution Act, 1982.114
156) To justify overriding the Aboriginal title-holding group’s wishes on the basis of the broader public good, the government must show that: (1) it discharged its procedural duty to consult and accommodate; (2) its actions were backed by a compelling and substantial objective; and (3) the governmental action is consistent with the Crown’s fiduciary obligation to the group.115 Incursions on Aboriginal title cannot be justified if they would substantially deprive future generations of the benefit of the land.116 There is a further onus on the Crown to ensure that the benefits that may be expected to flow from that goal are not outweighed by adverse effects on the Aboriginal interest.117
157) The Constitution of Canada recognizes and affirms the Stó:lō Collective members’ entitlement to use, rely on and exercise of control over these lands through the recognition of Aboriginal rights and Aboriginal title. The members of the Stó:lō Collective assert Aboriginal title and Aboriginal rights throughout their traditional territory. They also have Aboriginal food and ceremonial fishing rights on the Fraser River that have been affirmed by the Supreme Court of Canada.118
158) The rights, title and interests of the members of the Stó:lō Collective must be considered both in terms of the impacts of the proposed Project on those rights and interests and in the assessment of whether the proposed Project is in the Canadian public interest.
159) The federal government has stated that it intends “to rely on the NEB review process … to identify, consider and address potential adverse impacts of the Project on asserted or
113 Tsilhqot'in, at para 74. 114 Tsilhqot'in, at para 76. 115 Tsilhqot'in, at para 77. 116 Tsilhqot'in, at para 86. 117 Tsilhqot'in, at para 87. 118 R. v. Van der Peet [1996] 2 SCR 507.
60 established Aboriginal and Treaty rights.”119 The members of the Stó:lō Collective submit that this requires the NEB to:
collect and summarize the information provided by Aboriginal groups about their Aboriginal rights, title and interests;
set out how information placed onto the record by Aboriginal groups has been considered;
determine whether Trans Mountain’s evidence is accurate; and
set out how the proposed Project will impact Aboriginal rights and whether these impacts can be appropriately mitigated.
160) The failure of the process to obtain sufficient and reliable evidence with respect to the effect of the Project on the constitutional rights of the members of the Stó:lō Collective is deeply troubling and is sufficient cause for the Stó:lō Collective to object, on procedural grounds, to this process.
(ii) Duty to Consult 161) As stated by the Supreme Court of Canada in Haida Nation v British Columbia (Minister of Forests), the Crown has a legal obligation to consult with First Nations whenever the Crown is contemplating a decision that has the potential to adversely affect or infringe Aboriginal title, Treaty or asserted Aboriginal rights. The duty to consult is rooted in the principle that the honour of the Crown is always at stake in dealings between Aboriginal peoples and the Crown. The core, underlying purpose of consultation is to reconcile the prior interests of First Nations with the assertion of Crown sovereignty.120
162) Where Aboriginal rights are proven in court or when the claim to Aboriginal rights is strong and/or the degree of impacts is high, the Crown will have an obligation to attempt to accommodate the First Nation’s concerns.121
163) The duty to consult is a constitutional obligation of the Crown. Only procedural elements
119 Document ID#: A4L7C1, Appendix 4(f), p. 63, May 1, 2015 letter to T. Gardiner of Natural Resources Canada from J. Teillet, legal counsel for the Stó:lō Collective. https://docs.neb-one.gc.ca/ll- eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1 120 Haida at paras 20, 26- 27, [2004] 3 SCR 511 121 Haida, at para. 47
61 of the duty to consult can be delegated to proponents. The ultimate legal responsibility for consultation and accommodation rests with the Crown.122
164) The duty to consult is an implicit constraint on the statutory power of any decision-maker based on the theory that the legislature intends its delegates to act constitutionally. Consultation obligations are in addition to and inform statutory obligations.123
165) In Haida, Chief Justice McLachlin described meaningful consultation as follows: Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice's Guide for Consultation with Maori (1997) provides insight (at pp. 21 and 31): Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed . . . … genuine consultation means a process that involves…: • gathering information to test policy proposals; • putting forward proposals that are not yet finalized; • seeking Maori opinion on those proposals; • informing Maori of all relevant information upon which those proposals are based; • not promoting but listening with an open mind to what Maori have to say; • being prepared to alter the original proposal; • providing feedback both during the consultation process and after the decision-process.124
166) For the Crown to act honourably, it must engage in a dialogue with a potentially affected First Nation with a genuine intention of understanding their rights and concerns, and with an openness towards changing course if required.125 In Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), the Supreme Court of Canada held that meaningful consultation requires engagement as well as information sharing:
The duty here has both informational and response components. In this case … I believe the Crown’s duty lies at the lower end of the spectrum. The Crown was required to provide notice to the Mikisew and to engage directly with them (and not, as seems to have been the case here, as an afterthought to a general public consultation with Park users). This engagement ought to have included the provision of information about the Project addressing what the Crown knew to be Mikisew interests and what the Crown anticipated might be the potential adverse impact on those interests. The Crown was required to solicit and to listen carefully to the Mikisew concerns, and to attempt to minimize adverse impacts on the Mikisew hunting, fishing and trapping rights. The Crown did not discharge this obligation when it unilaterally declared the road realignment would be shifted from the reserve itself to a track along its boundary. I agree on this point with what Finch J.A. (now C.J.B.C.) said in Halfway River First Nation at paras. 159-60.
The fact that adequate notice of an intended decision may have been given does not mean that the
122 Haida, at para. 53 123 Musqueam Indian Band v British Columbia (Minister of Sustainable Resource Management), 2005 BCCA 128, at para 19, [2005] 251 DLR (4th) 717 [Musqueam]; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53 at paras. 45, 104, [2010] 3 SCR 103 [Beckman] 124 Haida, at para 46. 125 Haida, at paras 26- 27; Mikisew at paras 49 and 55
62 requirement for adequate consultation has also been met.
The Crown’s duty to consult imposes on it a positive obligation to reasonably ensure that Aboriginal peoples are provided with all necessary information in a timely way so that they have an opportunity to express their interests and concerns, and to ensure that their representations are seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.126 [emphasis added]
167) It is also a principle of the duty to consult that consultation must take place early in a decision making process:
The duty of consultation, if it is to be meaningful, cannot be postponed to the last and final point in a series of decisions. Once important preliminary decisions have been made and relied upon by the proponent and others, there is clearly momentum to allow a Project. This case illustrates the importance of early consultations being an essential part of meaningful consultation. … Thus, in my view, the duty to consult in this case arises at the earliest decision making by the government in an approval process leading to the possible infringement of claimed Aboriginal rights.127
168) The Court noted that it is important that consultation take place at the very earliest opportunity, before parties seeking land rights from government have invested so much time and money that they may have obtained legally enforceable rights.128
169) The Supreme Court of Canada in Mikisew also held that consultation must take place early in a process, noting that the principle of consultation in advance of interference with existing rights “is a matter of broad general importance to the relations between Aboriginal and non-Aboriginal peoples”.129
170) In Haida, the Supreme Court of Canada explained that the depth of consultation that is required in any given case will depend on the particular circumstances at issue:
Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. "'[C]onsultation' in its least technical definition is talking together for mutual understanding": T. Isaac and A. Knox, "The Crown's Duty to Consult Aboriginal People" (2003), 41 Alta. L. Rev. 49, at p. 61.
At the other end of the spectrum lie cases 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. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation
126 Mikisew, at para 64 [emphasis added and emphasis in the original] 127 Squamish Indian Band v. British Columbia (Minister of Sustainable Resource Management), 2004 BCSC 1320 at paras 74, 83 [Squamish] 128 Squamish, at para 92 129 Mikisew, at para 3
63 required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases.
Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. 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. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.130 [emphasis added]
171) The British Columbia Supreme Court has held that the Crown is required to consider the strength of a First Nations’ claim, and the degree of infringement to that claim, in the consultation process. A failure to do so represents a complete failure of consultation based on the criteria that are constitutionally required for meaningful consultation.131
172) The British Columbia Supreme Court has also held that the assessment must be conducted at the outset of consultation, given that the honour of the Crown in the consultation process requires that the Crown “must be willing to make reasonable concessions based on the strength of the Aboriginal claim and the potentially adverse effect”.132
173) It is submitted that the members of the Stó:lō Collective have proven Aboriginal fishing rights on the Fraser River. This has been affirmed by the Supreme Court of Canada in two cases, Sparrow and Van der Peet.133 We also note that several of the Bands in the Stó:lō Collective, although not all, are in Treaty negotiations. Treaty negotiations are inherently based on a presumption of Aboriginal title and rights. This is not a presumption that only those Bands in the process have Aboriginal title. Rather it is a presumption that the members of the Stó:lō Collective have Aboriginal title and that the Crown can enter into Treaty negotiations with a subset of the title holder. For all these reasons we submit that the claim to Aboriginal title and rights of the members of the Stó:lō Collective is very strong, which means that the level of consultation and accommodation is very high. The Supreme Court of
130 Haida, at paras 43-45 131 Huu-Ay-Aht First Nation v. British Columbia (Minister of Forests), 2005 BCSC 697 at para. 126 132 Gitanyow First Nation v British Columbia (Minister of Forests), 2004 BCSC 1734 at para. 50. 133 Van der Peet, at para 30; Sparrow, at 1106.
64 Canada has noted that,
Where a claim is particularly strong — for example, shortly before a court declaration of title — appropriate care must be taken to preserve the Aboriginal interest pending final resolution of the claim. [emphasis added]134
174) The Stó:lō Collective submit that this is a situation where care must be taken to preserve the Aboriginal rights and title of the members of the Stó:lō Collective pending resolution of their claims and Treaty negotiations.
175) In Tsilhqot'in, the Supreme Court of Canada added an additional caution to decisions to develop lands subject to a strong claim of Aboriginal title. The court noted that after Aboriginal title is established, the Crown may be required to reassess prior conduct in light of the new reality.
For example, 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. Similarly, if legislation was validly enacted before title was established, such legislation may be rendered inapplicable going forward to the extent that it unjustifiably infringes Aboriginal title.135 [emphasis added]
176) In circumstances such as face this Project, it is submitted that there is a strong prima facie claim at this time when the Board is contemplating an action that may be a significant intrusion of the Aboriginal title and rights of the members of the Stó:lō Collective. Significant accommodation is the very least that is required.136
177) The federal government has stated that it intends “to rely on the NEB review process … to identify, consider and address potential adverse impacts of the Project on asserted or established Aboriginal and Treaty rights.”137 The members of the Stó:lō Collective submit that this requires Trans Mountain to:
collect accurate information provided by Aboriginal groups about their Aboriginal rights, title and interests;
set out how information placed onto the record by Aboriginal groups has been
134 Tsilhqot'in, at para 91. 135 Tsilhqot'in, at para 92. 136 Tsilhqot'in, at para 93. 137 Document ID#: A4L7C1, Appendix 4(f), p. 63, May 1, 2015 letter to T. Gardiner of Natural Resources Canada from J. Teillet, legal counsel for the Stó:lō Collective. https://docs.neb-one.gc.ca/ll- eng/llisapi.dll?func=ll&objId=2784952&objAction=browse&viewType=1
65 considered; and
set out how the proposed Project will impact Aboriginal rights and whether and how these impacts can be appropriately mitigated.
178) It is submitted that the Proponent has failed in this regard. The inadequacy of the Proponent’s efforts in this regard is a relevant consideration for the Board in making its recommendations.
(iii) Obligation of Regulators to Act Consistently with the Constitution 179) In formulating its recommendations, the Board must be mindful of the fact that all administrative decision makers are bound to act in manner that is consistent with the Constitution, irrespective of whether the decision maker has the power to decide constitutional questions.138
180) This principle has been specifically applied by the Supreme Court of Canada in Beckman, where the court held that even in discharging administrative law duties, a decision maker is expected to discharge the constitutional obligations imposed by the duty to consult.139
181) The Constitution imposes two constitutional constraints on the federal government in relation to Aboriginal people. First, the federal laws and actions cannot unjustifiably infringe treaty and Aboriginal rights, as that would constitute a breach of section 35 of the
Constitution Act, 1982.140 Second, the Crown is always subject to the limits imposed by the honour of the Crown,141 such as the obligation to engage in proper consultation.142
182) The Federal Court has held that the obligation of an administrative body to act constitutionally also arises when the body is making recommendations only, as opposed to final and binding decisions, in fulfilling its statutory mandate.143
138 Slaight Communications Inc v Davidson, [1989] 2 SCR 1038 at para 87. 139 Beckman, at para 45. 140 Sparrow, at 1109; Delgamuukw 1010 at para 160, [1997] SCJ No 108 141 R v Badger, [1996] 1 SCR 771 at para 41; Manitoba Metis Federation Inc v Canada (Attorney General), 2012 SCC 14 at para 69-70, 77-79. 142 R v Kapp, 2008 SCC 41 at para 6, [2008] 2 SCR 483; Haida at para 41; Beckman, at para 41, 46 143 Canada (Attorney General) v Al Telbani, [2012] FCJ No 507
66 (iv) The Aboriginal Rights of the Members of the Stó:lō Collective 183) The previous section provides the constitutional context for understanding the evidence submitted by the Stó:lō Collective and the substantive and procedural requirements on Trans Mountain and the Board.
184) It is important to understand that when the members of the Stó:lō Collective asserts that they have constitutionally protected Aboriginal rights, these are not mere assertions.
185) The Supreme Court of Canada has dealt with the fishing rights of the Stó:lō in R. v. Van der Peet, which dealt with the Stó:lō practice of exchanging fish for money or other goods. Mrs. Van der Peet was a member of the Tzeachten Band. Tzeachten is one of the Stó:lō bands within the Stó:lō Collective.
186) The Supreme Court of Canada in both Van der Peet and Sparrow found that the right was inherent in the larger group, not just in the Indian Act Band who instigated the litigation. In Sparrow the larger group was the Coast Salish. In Van der Peet it was the Stó:lō. As noted in the ICA, Stó:lō are Coast Salish. In Tsilhqot’in Nation v. British Columbia,144 Vickers J. canvassed the case law on the proper claimant group for an Aboriginal title claim, and stated:
I conclude that the proper rights holder, whether for Aboriginal title or Aboriginal rights, is the community of the Tsilhqot’in people. Tsilhqot’in people were the historic community of people sharing language, customs, traditions, historical experience, territory and resources at the time of first contact and at sovereignty assertion.145
187) The members of the Stó:lō Collective assert Aboriginal title to their traditional territory and exercise Aboriginal rights throughout their territory. Some portions of the traditional territory of the members of the Stó:lō Collective will be directly affected by the construction and operation of the proposed Project. In the event of an accident or malfunction, however, additional tracts of the traditional territory of the members of the Stó:lō Collective may be impacted, including our reserves.
188) The Stó:lō Collective has filed evidence that shows both exclusive use and occupation of its members’ traditional territory at sovereignty and its members’ exercise of Aboriginal
144 Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700 [Tsilhqot’in] (the lower court decision in William, supra). 145 Tsilhqot’in, at para. 470.
67 rights in their traditional territory at occupation, as well as ongoing and continuous use and occupation and exercise of rights. The volume of material filed is considerable, and is relied on to demonstrate the strength of claim of the members of the Stó:lō Collective. The Stó:lō Collective’s members’ assertion of Aboriginal rights and title is supported by oral history, ethnographic materials, historical documentation and archaeology, leading to the inevitable conclusion that the strength of claim of the members of the Stó:lō Collective is extremely high.
(v) The NEB’s Mandate with Respect to Aboriginal Rights 189) The federal government has unilaterally established a consultation process for the proposed Project, which seeks to rely on this review, to the extent possible, as a component of that consultation. The NEB has been charged with issuing a report that takes into consideration a number of matters.
190) The NEB is, on the basis of the legislation and statutory instruments under which it has been constituted, obligated to consider potential impacts of the proposed Project on the Stó:lō Collective and recommend mitigation measures.
191) It is submitted that the NEB is also required to assess adequacy of the consultation process the Proponent has undertaken.
(vi) NEB’s Enabling Statutes Require Consideration of Aboriginal Rights 192) The NEB is not an emanation of the Crown, or its agent, and as such, does not have an independent duty to consult and accommodate the Stó:lō Collective. Ryer J.A., for the Federal Court of Appeal in Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc.,146 a case which examined whether or not the National Energy Board had a duty to consult when making a similar s. 52 “public interest” determination, noted:
I would add that the NEB itself is not under a Haida duty and, indeed, the appellants made no argument that it was. The NEB … is not the Crown or its agent.147
193) Although the NEB does not have an independent duty to consult and accommodate, it does have an obligation to consider matters accorded to it in its enabling legislation. For the
146 Standing Buffalo Dakota First Nation v. Enbridge Pipelines Inc., 2009 FCA 308 (Standing Buffalo) at para. 34. 147 Ibid
68 NEB, this includes considering strength of claim, potential impacts, assessing adequacy of consultation and recommending mitigation measures.
194) Chief Justice McLachlin, in the Supreme Court of Canada decision of Rio Tinto Alcan v. Carrier Sekani Tribal Council,148 a case dealing with the scope of the BC Utilities Commission’s obligation to consider consultation and accommodation when making a “public interest” determination, explained that the scope of a tribunal’s obligation regarding consultation and accommodation is defined by the tribunal’s enabling statute.
The duty on a tribunal to consider consultation and the scope of that inquiry depends on the mandate conferred by the legislation that creates the tribunal. Tribunals are confined to the powers conferred on them by their constituent legislation: R. v. Conway, 2010 SCC 22, [2010] 1 S.C.R 765. It follows that the role of particular tribunals in relation to consultation depends on the duties and powers the legislature has conferred on it.149
195) The NEB has been established pursuant to the National Energy Board Act (NEBA) and the Canadian Environmental Assessment Act (CEAA). As noted above, Canada has stated that it is relying on this review process as part of its consultation.
196) The Federal Court of Appeal, in Standing Buffalo, explained that s. 35 of the Constitution overlays a tribunal’s statutory obligations:
[T]he decision in Quebec (Attorney General) v. Canada (National Energy Board) establishes that … the NEB must act within the dictates of the Constitution, including subsection 35(1) thereof. In the circumstances of these appeals, the NEB dealt with three applications for Section 52 Certificates. Each of those applications is a discrete process in which a specific applicant seeks approval in respect of an identifiable Project. The process focuses on the applicant, on whom the NEB imposes broad consultation obligations. The applicant must consult with Aboriginal groups, determine their concerns and attempt to address them, failing which the NEB can impose accommodative requirements. In my view, this process ensures that the applicant for the Project approval has due regard to existing Aboriginal rights that are recognized and affirmed in subsection 35(1) of the Constitution. And, in ensuring that the applicant respects such Aboriginal rights, in my view, the NEB demonstrates that it is exercising its decision making function in accordance with the dictates of subsection 35(1) of the Constitution.150
197) A tribunal must fulfill its statutory mandate in accordance with s. 35 of the Constitution. Ryer J.A. found that the JRP in Standing Buffalo did not have an obligation to make findings on Crown consultation because the Aboriginal group was “unable to point to any provision of the NEBA or any other legislation that prevents it from issuing a s. 52 certificate without first undertaking a Haida analysis or that empowers it to order the Crown to undertake Haida
148 Rio Tinto Alcan v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650. 149 Rio Tinto, supra, para. 55. 150 Standing Buffalo, supra, para. 40.
69 consultations.” The legislation and Agreement constituting the NEB, however, does include provisions, which empower the NEB to undertake an assessment of consultation.
198) Both the NEB in Standing Buffalo and the NEB here are obliged to “[exercise their] decision making function in accordance with the dictates of subsection 35(1) of the Constitution.” This obligation is defined by the respective NEB’s enabling legislation. Here, the NEB has a s. 35(1) constitutional obligation to exercise its decision making function to determine whether there is sufficient, uncontradictory evidence on the record to make its recommendations with respect to the impacts of the Project on the Stó:lō Collective.
199) It is submitted that because of the procedural flaws in the hearing process the Board does not have reliable, tested, sufficient evidence to recommend the Project.
70 Part Seven: Conclusions
Findings Requested 200) On the basis of the evidence submitted the NEB should make the following findings:
1. That the process is fatally flawed because there it has not produced sufficient and accurate evidence that would enable the Board to fulfill its statutory and constitutional requirements with respect to determining the potential effects of the Project on the rights, title and interests of the members of the Stó:lō Collective;
2. That the evidence before the Board is insufficient to permit the Board to make a positive recommendation of a certificate of convenience and necessity; and
3. In the alternative to requested findings 1 and 2, that the Terms and Conditions be amended as set out in these submissions, including:
a. Trans Mountain shall file with the Board, at least 30 days prior to commencing construction of the Project, a report on consultation activities with the members of the Stó:lō Collective, which report must be approved by the Stó:lō Collective. The report must include, but not be limited to:
i. a summary of the consultation activities undertaken, including: 1) the methods, dates and locations of consultation activities; 2) a summary of the comments and concerns raised or information provided by the Stó:lō Collective; 3) a summary of Trans Mountain’s response to all of the comments and concerns raised or information provided; 4) a summary of any outstanding concerns about the Project’s potential effects raised by the members of the Stó:lō Collective, any steps that will be taken to address these outstanding concerns, or an explanation why no further steps are required; and 5) a description of the resources provided to the Stó:lō Collective that supported its participation in consultation activities; and
ii. for Board approval, a summary of the assessment of the Project’s potential effects on identified interests of the Stó:lō Collective, including: 1) a description of any such interests; 2) a description of the measures identified to reduce, eliminate or offset potential Project effects on such
71 interests; and 3) a description of how any concerns raised or information provided by the Stó:lō Collective on are addressed by or incorporated into the measures identified to reduce, eliminate or offset potential Project effects on such interests; and 151
b. Trans Mountain shall work in good faith with the Stó:lō Collective to implement the 89 conditions in the ICA, and will file with the Board for Board approval, at least 180 days prior to commencing construction of the Project, a report on progress made on implementation of such conditions, which report must be approved by the Stó:lō Collective and which report must include a summary of the implementation activities undertaken, including: 1) the methods, dates and locations of implementation activities; 2) a summary of the comments and concerns raised or information provided by the Stó:lō Collective; 3) a summary of Trans Mountain’s response to all of the comments and concerns raised or information provided; 4) a summary of any outstanding steps required to implement the 89 conditions; and 5) a description of the resources provided to the Stó:lō Collective that supported its participation in condition implementation activities;
151 This condition mirrors the Condition #10 included in the NEB recommendations regarding the North Montney Mainline Project GH-001-2014.
72