Squamish Nation Direct Evidence

Hearing Order MH-052-2018 Board File: OF-Fac-Oil-T260-2013-03 59

NATIONAL ENERGY BOARD

IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N-7, as amended (“NEB Act”) and the Regulations made thereunder;

AND IN THE MATTER OF an application by Trans Mountain Pipeline ULC as General Partner of Trans Mountain Pipeline L.P. (collectively “Trans Mountain”) for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part III of the NEB Act for the Trans Mountain Expansion Project (“Project”);

AND IN THE MATTER OF the National Energy Board’s reconsideration of aspects of its Recommendation Report (“Report”) as directed by the Governor in Council through Order in Council P.C. 2018-1177 (the “Reconsideration”).

SQUAMISH NATION DIRECT EVIDENCE

December 5, 2018

Introduction

1. The Squamish Nation (“Squamish” or the “Nation”) relies on and adopts the evidence that it provided to the National Energy Board (the “Board” or the “NEB”) in the OH-001- 2014 proceeding. The Nation references some of the information on the record in the OH-001-2014 proceeding below to highlight relevant aspects and to provide context for the evidence to be considered in the Reconsideration hearing.

Squamish Nation

2. The Squamish Nation (“Squamish” or the “Nation”) is a Coast Salish Nation. Squamish is a self-identifying Aboriginal Nation and an Aboriginal people. We currently have over 4,053 registered members.

3. Since a time before contact with Europeans, Squamish have used and occupied lands and waters on the southwest coast of what is now British Columbia extending from the Lower Mainland of British Columbia, and including Burrard Inlet, English Bay, Howe Sound, the Squamish Valley and north to Whistler (the “Territory”).

4. The boundaries of Squamish Territory encompass all of Burrard Inlet, English Bay and Howe Sound, as well as the rivers and creeks that flow into these bodies of water.

5. Squamish has occupied, governed and sustained ourselves physically, culturally and spiritually since time immemorial from the areas of our Territory that would be impacted by the Project. Squamish asserts Aboriginal rights, including title and self-governance rights, within these areas pursuant to section 35(1) of the Constitution Act, 1982.

6. Further, since a time before contact with Europeans, Squamish regularly travelled to and fished in the Fraser River and we assert Aboriginal rights to fish in the Fraser River, including at its mouth and on its tributaries.

7. Squamish continue to occupy, and be stewards of, our Territory, and harvest resources throughout our Territory, among other places, the Capilano River at the entrance of Burrard Inlet, the Fraser River, and Howe Sound for food, social and ceremonial

purposes. Squamish are protectors of the Salish Sea and rely heavily on the marine and freshwater resources within our Territory to practice our Aboriginal rights.

Squamish Nation Reserves and Village Sites

8. Squamish has 24 reserves located throughout our Territory that are extensively used and occupied by our members.

9. Squamish has three reserves located in and at the entrance to Burrard Inlet: Seymour Creek Reserve No. 2 (Ch’ích’elxwi7kw) on the north shore close to the Westridge Marine Terminal, Mission Reserve No. 1 (Eslhá7an), and Capilano Reserve No. 5 (Xwmech’stn). These reserves could be directly impacted by any accidents or malfunctions associated with the Project. Also affected are Kitsilano Reserve No. 6 (Sen̓ ákw) near the entrance to False Creek, and at least three other waterfront reserves in Howe Sound.

10. However, not all Squamish villages in the Project area were designated as reserves. For example, Squamish village sites in what is now Stanley Park were never granted reserve status. Further, Squamish people were removed from certain sites as the City of Vancouver expanded. In 1913, the Squamish inhabitants of our reserve at Sen̓ ákw (Kitsilano IR No. 6) were removed from the site and relocated to the villages of Xwmech’stn (Capilano) and Eslhá7an (Mission) on the north shore of Burrard Inlet. In 1946 our ancestors were compelled to surrender most of that 80-acre IR No. 6 but we have maintained a 10-acre portion of it.

11. There are former Squamish villages adjacent to the marine terminal for the Project, including Temtemixwtn (Belcarra) and Titemtsen (Port Moody), and along the tanker route.

Significance of the Project-related marine shipping to Squamish

12. A significant part of the Project, the marine terminal and associated tanker traffic, is to be situated in the heart of Squamish Territory. Burrard Inlet and the Salish Sea are central to

Squamish identity and culture. They are also key to the modern economic success of our Nation.

13. The majority of Squamish members live in or near what is now North Vancouver and West Vancouver both on and off reserve within close proximity to the terminal and tanker routes. The majority of those members who live on reserve live on one of the reserves on the north shore of Burrard Inlet. The Squamish Council and main administrative office is at Ch’ích’elxwi7kw – Seymour Creek Reserve across the Inlet from the Westridge Marine Terminal.

14. In addition to this being our home, we rely on our territorial and reserve lands, and the waters and resources adjacent to them, to support our people, culture and way of life, and to practice our Aboriginal rights, including harvesting, cultural, social, ceremonial and governance rights. These areas are culturally and ecologically significant, are vital to Squamish’s livelihood and economy, and are critical to the survival of Squamish people and culture.

15. The Project area contains a concentration of Squamish cultural and spiritual values including multiple burial sites, ancestral villages, habitation sites, traditional transportation corridors and important fish, game and plant harvesting areas. Due to the density and significance of the cultural and spiritual values in the Project area, the lands and waters in this area are very sensitive to further industrial development. The loss of access to, or availability of, the land, waters and resources within this part of Squamish Territory would be devastating to Squamish identity and culture.

16. Squamish would bear the burden of a significant portion of the potential risks and impacts of the Project. The Project would result in a substantial increase in shipping of diluted bitumen in Squamish Territory, increasing the risks of spills or other accidents that would be catastrophic for Squamish people, lands, water, culture and economy.

17. Squamish takes our stewardship role within our Territory seriously. Squamish has actively engaged in rehabilitating the marine environment in the Project area in an attempt to counteract the effects of industrialization. The Project threatens to undermine

those efforts by substantially increasing the storage and shipment of diluted bitumen in those areas for an indefinite duration.

18. As detailed below, the Project-related marine shipping, including accidents and malfunctions associated with Project-related marine shipping, has the potential to adversely impact, our people, our lands, our waters, and a wide range of our interests, including:

(a) our traditional and contemporary use and enjoyment of our reserves and territorial lands and waters in and around Burrard Inlet and the Salish Sea;

(b) our stewardship of the Salish Sea and the existence of marine mammals of cultural importance in the Territory, including orcas, porpoises, seals and seal lions;

(d) our ability to harvest these resources from significant and sacred sites; and

(e) our use of Burrard Inlet and the Salish Sea as a relatively safe waterway for our paddlers.

Squamish Seasonal Round

19. Squamish has extensive traditional use and occupancy sites in Indian Arm, Burrard Inlet and the Salish Sea. These sites illustrate the extensive and intensive nature of Squamish use and occupation of these areas, and the dependency of Squamish culture and identity on the marine and aquatic environment.

20. The geographic location of Squamish village sites and harvesting areas reflects the Squamish seasonal round, which was used to efficiently access the resources in Squamish Territory throughout the year. While most villages remained at least partly occupied throughout the year, and there are numerous permanent village sites, many people moved between winter villages on the Squamish and Cheakamus Rivers to summer village sites

on Burrard Inlet, Howe Sound, and the Fraser River to continue harvesting local resources through the spring, summer, and fall.

21. Squamish members continue to practice a seasonal round today travelling throughout our Territory to access a wide variety of resources, and engage in cultural and spiritual activities. Squamish people continue to use our Territory for fishing, hunting, and gathering traditional foods for sustenance, social and ceremonial purposes. However, it is becoming more difficult for our people to access resources as the quality, purity and abundance of resources has been adversely impacted by industrial development.

22. Maintaining access to traditional travel routes throughout the marine environment is critical to maintaining the Squamish seasonal round.

Squamish Nation Aboriginal rights and interests

23. Squamish’s distinct system of governance, traditional and cultural practices, spirituality, and harvesting activities are inextricably linked to the lands, waters and resources of our Territory. Squamish continue to use and rely on the resources available in our Territory, in a respectful and sustainable manner.

24. Stewardship and respect for these resources is essential for the survival of Squamish and our distinctive culture. Squamish has a wide set of title, rights and interests that are potentially impacted by the Project. Squamish take our role and responsibility as stewards of our Territory seriously, and wish to protect our lands and waters for future generations.

Squamish self-government rights

25. An important aspect of Squamish rights and title to our Territory is our ability to govern and act as stewards of the lands, waters and resources within our Territory. Squamish have governed, protected and defended our Territory since time immemorial.

26. Squamish people historically governed ourselves by appointing leadership roles called a siy̓ ám̓ . A siy̓ ám is sometimes translated as “chief”, but has a wider cultural meaning as well. A siy̓ ám̓ was associated with discrete areas within the larger Territory. A siy̓ ám̓

would have a siy̓ ámin – an area in the care and responsability of the siy̓ ám̓ . A complex set of practices, customs, and laws applied within the siy̓ ámin – these rules and practices are inseparable from the lands and waters, and inform Squamish governance of our Territory today.

27. Since 1981, Squamish has governed itself by way of a custom election system. Currently, sixteen Councilors are elected by eligible members 18 years and older and serve four year terms. Each of these 16 Councillor positions is directly related to the 16 hereditary Chiefs and Squamish people that amalgamated on July 23, 1923 to form Squamish’s traditional government.

28. Squamish continues to exercise governance over our Territory in a variety of ways, including by: managing development in our Territory to ensure an abundance of safe traditional resources and foods; undertaking rehabilitation of areas within our Territory that have been contaminated by development; partnering with neighbouring First Nations and the Coast Salish community to jointly share and manage resources; and transmitting the principles of stewardship and resource conservation to the next generation.

29. Squamish has been an active member in the Coast Salish Gathering. This gathering is a trans-boundary collective of approximately 60 First Nations/tribes engaged in revitalizing the health and long-term sustainability of the Salish Sea by using marine use planning based on scientific and traditional ecological knowledge. The protection of the Salish Sea extends to the protection of the marine fish and marine mammals within the Salish Sea.

30. Squamish is taking an active role in efforts to reinvigorate and enhance the sustainability of the aquatic ecosystem, including in Burrard Inlet, to combat the effects of industrialization, partnering with various jurisdictions and organizations to implement initiatives that protect our Territory. Recent examples include:

(a) Fisheries enhancement, through installation of a rearings pond, on McDonald Creek (Ch’tlaam), with the West Vancouver Streamkeepers;

(b) Foreshore and estuary restoration on Mackay Creek (Tl’álhema7elks), with the City and District of North Vancouver and Seaspan;

(d) Stream rehabilitation in New Brighton Park (X̱ í7namut) area on the south shore of Burrard Inlet, just west of the Westridge Marine Terminal; and

(e) Removal of fish barriers on Ch’ích’elx̱ wi7ḵw (Seymour Creek), with the Seymour Creek Salmonid Society.

31. Squamish has established a fisheries department, and enacted a fishing by-law to ensure sustainable fishery resources in our Territory for generations to come. The by-law regulates fishing through Fisheries Guardians who oversee the use of the fishing resources in particular areas within the Territory and educate Squamish youth with regard to fishing practices. Squamish has also engaged in hatchery projects to aid in the rehabilitation of fish stocks. These efforts are a small part of the active role Squamish plays as a steward of our waters and fisheries resources.

32. Squamish is particularly concerned about species that have cultural significance to the Nation disappearing from our waters. It used to be that there were an abundance of sea lions, seals, dolphins, porpoise and orcas in southern Howe Sound and Burrard Inlet. However, the number of these marine mammals has diminished. Recently, the rehabilitation work of the Nation and others has seen the return of orcas to Howe Sound and Burrard Inlet, but it is critical to our culture that this work not be undermined.

Squamish harvesting rights

33. Squamish are uniquely dependent on the aquatic and marine environment within our Territory that would potentially be impacted by the Project to exercise our aboriginal rights and maintain our way of life. Squamish people enjoy a variety of benefits from the aquatic and marine environment in our Territory, including economic benefits, and manage our Territory to ensure the continued availability of these benefits.

34. Squamish members continue to use our Territory to fish, hunt and gather resources for sustenance, and to fulfill our social and ceremonial needs. This harvesting is an essential

part of Squamish identity and heritage, and is fundamentally dependent on strong governance and stewardship of our Territory, including the aquatic and marine environment. Conservation is a foundation of Squamish culture that has ensured access to resources in our Territory up until today. It is Squamish’s intention to ensure that this continues to be the case.

35. Squamish continue to rely on our Territory to exercise our aboriginal harvesting rights to fish, hunt and gather marine, aquatic and terrestrial resources. For example, we exercise our rights in and around our Territory to harvest:

(a) fish including, salmon, herring, herring roe, smelt, trout, cod, flounder, and rockfish;

(b) shellfish including, sea urchins, crab, clams and prawns;

(d) mammals including, deer, elk, seals, sea lions, black bears and mountain goat; and

(e) cultural and medicinal plants, seaweed, clay, berries, broadleaf maple, cedar and douglas fir and other timber for canoes and longhouses.

However, the availability, health, and abundance of many of these resources has been impacted by the industrial development within our Territory, particularly in Burrard Inlet.

36. The rivers and streams entering into Burrard Inlet have served as important harvesting, transport, and cultural locations for Squamish. These waterways have provided a number of resources, including:

(a) trout and pink and chum salmon in Lynn Creek;

(b) dungeness crab, flounder, cod, trout and salmon in and at the mouth of Mosquito Creek;

(d) steelhead, coho, pink, chum and chinook salmon in Seymour Creek; and

(e) tidal traps at Stítsma (Maplewood flats) and at Á7enmitsut in False Creek.

The availability, purity and abundance of many of these resources have been impacted by the development in and around Burrard Inlet. Squamish is taking an active role in restoration efforts as described above.

37. The marine and aquatic resources in Squamish Territory also play an important economic role for Squamish. Squamish traditionally harvested marine and aquatic resources for sustenance and ceremonial purposes, but also for trading purposes.

Squamish’s right to fish is essential to our culture

38. Like other Coast Salish people, the Squamish harvest and use various fisheries resources in and around the Territory. The harvest of fisheries resources was and remains fundamentally important to the Squamish culture and economy.

39. Dried and preserved fisheries resources, and particularly salmon, were and are an extremely important food source for the Squamish throughout the year and important to ceremonial and social aspects of our culture, including for distribution and consumption at feasts, weddings, funerals/memorials and other events.

40. Salmon are a high-protein food and can be harvested and preserved in large quantities. Salmon, and particularly sockeye salmon, are an essential and valued resource for the Squamish. The Squamish traditionally harvested salmon throughout our territory, including among other places, the Lower Fraser River between the mouth of the Fraser and at least as far up the river as what is now Hope, B.C. for sockeye salmon.

41. Squamish continue to harvest salmon throughout our Territory, but salmon stocks have been on the decline, and Squamish worry about maintaining continued access to this valuable resource. The Fraser River is the only source of sockeye salmon in and around our Territory. No other river in this area has a run of sockeye salmon. Attached as “Annex A” is a report prepared by Richard Inglis for the Nation entitled “Opinion Report

Squamish Fishing on the Fraser River” that describes the Nation’s fishing history in respect of the Fraser River.

42. Squamish fears that an accident or malfunction associated with the marine shipping aspect of the Project would be catastrophic to the fisheries resources upon which the Nation’s members depend.

Squamish’s right to navigate our Territory

43. In addition to supporting harvesting activities, Squamish communities have traditionally relied, and continue to rely, on the water ways in and around Burrard Inlet, Southern Howe Sound, and the lower Fraser River as important transportation corridors. This movement is seasonal and important for maintaining familial ties, participating in community activities, accessing sacred sites and transmitting information about cultural practices from one generation to the next.

44. Lheḵw’lhứkw’aytn (Burnaby Mountain) – the location of the Westridge Marine Terminal – is along a water route used by Squamish people to travel between Capilano and Indian Arm.

45. Transportation routes were and are specific with respect to location, directionality, and timing, reflecting the essential aquatic orientation of Squamish people. Examples include:

(a) the use of specific marine waypoints, visible only from the water, as navigation and safety aids;

(b) ancestral villages in Howe Sound, like Ch’kw’elhp and Ḵ’iḵ’elx̱ n, along with a burial ground on Keats Island are stopover sites at which location-specific stories are told; and

(c) water-based vantages are important sites from which to teach cultural norms, as well as water safety and respect, to youth.

46. Travel to other Coast Salish communities was and remains significant to the maintenance of family ties. Canoe races cement intratribal and intertribal connections. Paddlers of

canoes continue to train in and around the Territory. Canoe races continue to take place in Burrard Inlet, between Roche Point and Belcarra, Ambleside and Coal Harbour, as well there are annual tribal canoe journeys throughout the Salish Sea and Pacific west coast.

Squamish cultural and spiritual practices

47. Burrard Inlet, and the surrounding areas, have been the home of the Squamish since time immemorial. Squamish’s cultural and spiritual practices are inseparable from the lands and waters on and in which they are exercised.

48. Numerous Squamish archaeological, cultural and/or otherwise sacred sites exist in and around Burrard Inlet, including shell middens, culturally modified trees (bark stripping, indigenous logging, canoe manufacture), cemeteries, burials, fish traps or fish weirs, canoe runs, and rock art.

49. The rivers and creeks within Squamish Territory have been, and continue to be, important sites from a cultural and spiritual perspective. Maintaining access and the purity and privacy of these sites is critically important to our people – especially in view of existing urban and industrial disturbance. Some creeks entering Burrard Inlet, are important to Squamish for spiritual training and locations for spiritual bathing.

50. The bathing practices are more than a ritualistic cleansing – they also serve as a means to re-awaken the person to our past, in the same way that practices in the longhouse itself wake up a person to our past. The bathing practices are associated with a rite of passage and instill a way of life that respects the connections to the natural world.

51. The longhouse is the hub of Squamish culture, spirituality, cultural education, beliefs, and practices. There are currently two longhouses located on Squamish Territory – one at Xwmel̓ch’stn (Capilano Reserve) and one at Ch’ich’elx̱ wi7kw (Seymour Reserve), but there was historically a number throughout our Territory.

52. The resources needed to support the longhouse tradition are drawn from the waters and lands in and around Burrard Inlet: the masks are made from local cedar; feathers harvested from local waterfowl are used to welcome the new xaw̓ sálḵwelh dancers (the

new longhouse dancer) upon their first entry into the longhouse; and the food used for ceremonial and sustenance purposes is harvested from the broader Territory. Continued access to these resources is integral to the longhouse tradition enduring. The longhouse tradition is the thread connecting thousands of years of Squamish practice and culture.

53. The connection between Territory and culture is an essential component of Squamish identity. Harvesting in the same places as Squamish ancestors and relatives harvested allows for the transmission of site-specific Squamish teachings and history. Being on and learning from Squamish Territory expresses and reinvigorates Squamish identity.

54. The waters in and around Burrard Inlet are used as points to realize Squamish’s spiritual connection to our Territory. Sloughs and marshes are portals that connect to the aqueous spiritual realms. These portals are found in several locations throughout the area that would be impacted by the Project. These stories are central to Squamish beliefs and mythology, and cement the importance of the water in Squamish culture. For example:

(a) Xwech’táal, a prominent figure in Squamish oral history, was transported through one of these underwater portals after being abducted by the seal people. Xwech’táal brought back the connection of these realms to the living world and the sacredness of that connection when he returned four years later. This location is near the Burnaby Mountain tunnel (along with the Burnaby Terminal and Westridge Marine Terminal), located north of the site near Temtemixwtn – Belcarra Park.

(b) One of the Wild People, known as the smàýlilh, trained Squamish warriors in the Capilano River. The Squamish were instructed to carry heavy stones underwater through the pools on the river, and in so doing, were transcended into the spirit world.

55. Many of the people in the Squamish community have learned of the different spiritual sites in our Territory from our parents and our grandparents, as knowledge of these sites is passed down from one generation to the next by visiting the sites, and accessing the sites from the marine environment.

Squamish Marine Dependent Economic Interests

56. The marine and aquatic resources in Squamish Territory also play an important economic role for Squamish. Squamish traditionally harvested marine and aquatic resources for sustenance, ceremonial and commercial purposes, including trade.

57. Today, Squamish has many businesses that are dependent on a healthy marine and aquatic environment. Squamish owns Mosquito Creek Marina on IR No. 1 and Lynnwood Marina on IR No. 2. By the Lynnwood Marina, there are a number of leases of the foreshore to third party businesses and a waterfront restaurant owned by the Nation (that is now closed). Squamish further has economic development aspirations for a stretch of foreshore on IR No.5 – being one of the last large undeveloped waterfront properties in the Vancouver area. The businesses of Squamish are critically important to the economic well-being of our Nation.

Correspondence with the Crown

58. Since the decision of the Federal Court of Appeal on the Project, Canada has not engaged, substantively or otherwise, with our outstanding concerns with the Project. The Nation also has not been informed of the process by which Canada will discharge the duty to consult and accommodate for the Project.

59. The Nation is concerned about the scope of the reconsideration. The Nation is deeply connected to and dependent on our lands, waters and resources that stand to be impacted by the Project, and it is artificial and not in keeping with how we use our Territory to consider certain Project effects on our aboriginal rights and title in isolation from the broader Project impacts.

60. On October 31, 2018, the Nation met with Minister of Natural Resources, Amarjeet Sohi, with respect to the Nation’s early concerns with Canada’s approach to consultation on the Project, including the strict time limit of 155 days for the Board’s hearing process and the limited scope of the Board’s Reconsideration that Canada is relying on to the extent possible to fulfill the duty to consult. Attached as “Annex B” to this evidence is a copy of a letter from the Nation to Minister Sohi following-up from the meeting.

61. The October 31st meeting is the only meeting that Canada’s consultation representatives have had with the Nation on the Project since the Federal Court of Appeal decision.

62. On November 9, 2018, Canada wrote to Squamish asking whether the Nation intends to participate in consultation and requesting comments once again on the 2016 Crown Consultation and Accommodation Report (“2016 CAR”). Canada acknowledged that Squamish is owed consultation at the “high end of the consultation spectrum”. Attached as “Annex C” to this evidence is a copy of the November 9, 2018 letter.

63. On November 20, 2018, Squamish wrote to Minister Sohi to follow-up on the November 5th letter and in response to the November 9th letter of Canada. Squamish confirmed its intention to participate in consultation. The Nation reiterated that the overall timeline for the Board for the Reconsideration set by cabinet remains grossly inadequate and unfair to Squamish, despite the NEB granting an extension for the Nation to submit its evidence, and asked Canada for a response to their request for an extension.

64. Squamish highlighted that it had provided extensive comments on the 2016 CAR in the previous Phase 3 consultation and submissions before the Federal Court of Appeal, particularly with respect to the determination that impacts to the Nation's rights “were up to minor” (that Squamish objected to as incorrect and unreasonable) and stated that:

Asking the Nation to once again comment on a document that we have made clear to Canada does not accurately represent our rights, impacts to those rights from the Project and our outstanding concerns with the Project, is not a meaningful attempt at engagement and ignores the time and effort that Squamish put into the initial round of consultation with Canada that was found to fall well short of the required standard.

The Nation asked that Canada review Squamish’s prior submissions before the NEB, during the initial Phase 3 consultation with Canada and before the Federal Court of Appeal, and provide a response to the Nation on how Canada plans to address the concerns outlined in those submissions in the reinitiated Phase 3 consultation process. Attached as “Annex D” to this evidence is a copy of the November 20, 2018 letter.

65. Canada has put the 2016 CAR into evidence before the Board. Since the Federal Court of Appeal decision, to the best of the Nation’s knowledge the 2016 CAR has not been

updated. The 2016 CAR does not accurately represent the Nation’s rights, impacts to those rights from the Project and the Nation’s outstanding concerns with the Project

66. Canada has further put evidence before the Board on overarching government initiatives (such as the Oceans Protection Plan and the Indigenous Advisory and Monitoring Committee). However, Squamish has made it clear to Canada, including before the Federal Court of Appeal, that these initiatives do not address the Nation’s specific concerns with the Project.

67. With respect to the Indigenous Advisory and Monitory Committee, the Nation wrote to Canada in the initial consultation process for the Project noting that development of the Committee “does not address Squamish’s concerns with the lack of a proper risk assessment for the Project, and the potentially catastrophic consequences of accidents and malfunctions associated with the Project.” The Nation stated that “Squamish does not want to be relegated to a clean-up crew in our territory.” Attached as “Annex E” to this evidence is a copy of the Nation’s November 16, 2016 letter.

68. The Indigenous Advisory and Monitory Committee does not include a representative from Squamish and does not represent Squamish, particularly with respect to consultation on the Project.

69. Further, any Squamish participation in the West Coast Energy Initiative and other general initiatives is outside the consultation and accommodation process for the Project, and is not engagement on the Project. If Canada is to rely on particular initiatives as consultation or accommodation for Project risks and impacts, it is imperative that Canada make that intention clear to the Nation before any engagement takes place. This way the Nation can ensure that its limited resources and personnel are properly allocated to those initiatives.

70. The Nation is surprised to see such initiatives as the “Cumulative Effects Monitoring (2017)” proposal included in Canada’s evidence for the Project. This initiative is not part of consultation on the Project. However, it does highlight a concern of the Nation that

more needs to be known about the current cumulative impact of the traffic in Burrard Inlet on Squamish rights before additional tanker traffic is approved for the Project.

Limitations of this Evidence

71. This evidence was prepared within the constrained timeline set by cabinet for the Reconsideration of the Project. Since the decision of the Federal Court of Appeal, Squamish has not had the time to canvas the views of all its members about the potential impacts of the Project-related marine shipping on our rights, title and interests.

ANNEX A Squamish Fishing on the Fraser River

Opinion Report

Squamish Fishing on the Fraser River

Richard I. Inglis

I have been asked by the Squamish Nation to give my opinion relating to Squamish fishing on the Fraser River and the significance of fishing to Squamish culture and economy.

Anthropologists classify the Squamish as one of the Central Coast Salish peoples of the Gulf of Georgia region. The Squamish language is different from the other Central Coast Salish tribes. The economy of the Central Coast Salish, including the Squamish, relied heavily on marine resources and in particular on salmon which are harvested from the various rivers in the region.1 Anthropologist Michael Kew wrote:

“Existence of a close connection between salmon and aboriginal culture of the Northwest is not a new observation, Indian oral literature asserts it, and every ethnographer and archaeologist to study Fraser River people has been similarly impressed by the place of salmon in Indian life.”2

Suttles, in his essay on the significance of the Fort Langley journals, states further that it was “the summer run of sockeye in the Fraser that brought large numbers of people past the fort [Fort Langley] on their way upriver.” Suttles characterized salmon as being of “first importance in the Native economy.”3

Hill-Tout, in his study of the Squamish, stated that salmon was the “principal and staple food” of the Squamish.4 Salmon was consumed fresh, preserved by drying or smoking, and rendered into oil. Salmon would have been consumed daily as well as at ceremonial events, including potlatches. The importance of salmon to the Squamish is further reflected in rituals and taboos associated with salmon including the first salmon ceremony.5 Barnett noted that everybody (referring to the Coast Salish) had prayers and songs they used while fishing.6

1 Suttles, Wayne (1990). ‘Central Coast Salish.’ In Volume 7. Handbook of North American Indians: Northwest Coast, Wayne Suttles editor. Washington, D.C.: Smithsonian Institution: 453-475. 2 Kew, Michael (1992). ‘Salmon Availability, Technology, and Cultural Adaptation in the Fraser River Watershed.’ Chapter 4 in A Complex Culture of the British Columbia Plateau: Traditional Stl’átl’imx Resource Use, edited by Brian Hayden. Vancouver: UBC Press. 3 Suttles in Suttles 1998: 181, 179. 4 Hill-Tout 1900. Reprinted in Maud 1978: 50. 5 Barnett, Homer (1955). The Coast Salish of British Columbia. Eugene Oregon: University of Oregon Press: 91; Bouchard R. and D. Kennedy. Utilization of Fish, Beach Foods and Marine Mammals by the Squamish Indian People of British Columbia: 1976: 9-22; Suttles 1990: 468. It is interesting that Bouchard and Kennedy state that sockeye was seldom eaten by the Squamish based on information from L.M. This statement is counter to all other evidence, including the origin of salmon narrative recoded by Hill-Tout (pages 58-62), in which sockeye is one of

July 30, 2013 Page 1 Squamish Fishing on the Fraser River

The Fraser River was the major salmon harvesting area for the Central Coast Salish peoples because of the large runs of all species of salmon.7 The Fraser River historically was, and continues to be, one of the best salmon producing river systems in the North Pacific region. The Fraser River is the only river in the southern Gulf of Georgia region with a significant run of sockeye.

First contact between aboriginal people and Europeans in the lower Gulf of Georgia region was in the early 1790s. The Spanish expeditions of Eliza and Narvaez in July 1791 and Alcala Galiano and Valdez in June 1792, and the British expedition of Vancouver in June 1792, made brief contact with the aboriginal peoples at various locales in the marine areas of their territories. The Fraser River was not “discovered” by these expeditions. No names of people or chiefs were recorded in any of the journals from the expeditions. No further incursions by maritime expeditions in the region until the 1820s have been identified.

The first contact by a land expedition with the aboriginal people of the Fraser River was by Simon Fraser in 1808. The expedition was on the lower Fraser River in late June/early July. A number of villages were briefly visited or observed.8 The only names recorded by Fraser, however, are one village, “Misquiame” and one people, the “Masquiamme,” both located on the North Arm of the Fraser River.9 In the 1820s, there were several Hudson’s Bay Company expeditions in the area of the Fraser River including McMillan in November 1824, who travelled down the river from Hatzic Slough to the mouth; and Hanwell in command of the William and Ann, off the mouth of the Fraser River in late August 1825.

In 1827, the Hudson’s Bay Company established Fort Langley approximately 30 miles upriver from the mouth of the Fraser River. Three journals of the first three years of the fort have survived. There are entries for two complete years, 1828 and 1829, and the first half of the year in both 1827 and 1830: George Barnston from 27 June 1827 to 17 February 1828; James McMillan from 18 February 1828 to 8 October 1828; and Archibald McDonald from 9 October 1828 to 30 July 1830. There are also entries for August and September 1830 that were copied into McDonald’s letter book from the 1830-1831 journal. The journals were edited and

the salmon species given to the Squamish so they would have plenty to eat. Nor is a taboo against sockeye mentioned in any of the other Coast Salish ethnographies. In fact, the opposite is the case, as sockeye is noted as the major targeted species and the reason for the Central Salish tribes travelling to the salmon fishery on the Fraser River. 6 Barnett 1955: 79. 7 Duff 1952: 11; Suttles in Suttles 1990: 457. 8 The editor of the Fraser journal, historian W. Kaye Lamb, stated “… the description of the journey down the river from Lady Franklin Rock (located above Yale) to the site of New Westminster is described in such general terms that it is impossible to identify the various features mentioned with confidence” (Lamb 1960: 101, footnote 27). 9 Fraser in Lamb 1960: 106, 109.

July 30, 2013 Page 2

Squamish Fishing on the Fraser River published in 1998 by historian Morag Maclachlan with ethnographic contributions by anthropologist Wayne Suttles.10

In the journals, there are numerous observations of, and reports on, the aboriginal people in the region of Fort Langley including the Squamish. How many Squamish came to the Fraser River is difficult to determine as only numbers of canoes are recorded. It is my opinion that a conservative estimate based on the number of canoes would be three to five hundred people, and likely more.11

The Squamish were well known to the Hudson’s Bay Company traders at Fort Langley as evidenced in the numerous accounts provided in the journals. The name Squamish is rendered in various ways in the journals including as Homes, Choomes, Whomes, Whoomes, Whooms, Whoomus and Whoomis.12 They were reported as coming from Burrard’s Canal (Burrard Inlet).13 The traders paid particular attention to the Chief as will be seen in the references below. The seasonal movement of the Squamish, based on the journals, was for the Squamish to travel by canoes to the Fraser River annually and spent four to five months in the area, arriving in April and returning to Burrard Inlet in late September, early October.

The first mention of Squamish people in the journals was on September 28, 1827, when “one hundred canoes and rafts14 of the Homes tribe passed today on their way down the River, & their Chief is expected tomorrow accompanied by the remainder of his people.”15 The Squamish had been up at the salmon fishery.16 There is no observation of the arrival of the Squamish in 1827,

10 Maclachlan, Morag (ed). The Fort Langley Journals, 1827-30. With Contributions by Wayne Suttles. Vancouver: UBC Press, 1998. 11 In September 1829, when describing the Cowichan, McMillan stated that “each [canoe] seldom contains more than one man with the family.” If this is a general pattern, then a canoe would have a man, his wife and children, or approximately 5 per canoe. The Squamish also had larger war canoes with them (see May 17, 1830 entry). War canoes are described by Barnston “as Luggage Boats… which contain a great Bulk of Furniture & Baggage. The Size of some of these craft is fully 50 feet in length and 6 to 7 ft. across the middle” (Barnston, 25 August 1827, in Maclachlan 1998: 34). The large canoes are also described as holding 30 men in each (McMillan, 21 March 1829; 24 September 1829, in Maclachlan 1998: 102, 128). On May 22, 1828, McMillan noted “a Couple of Large Canoes of Whooms {with about 15 men ea}” (McMillan in Maclachlan 1998: 64). 12 Suttles, Wayne (1998). ‘Names in the Fort Langley Journal.’ Appendix E in Maclachlan 1998: 237; Duff 1952: 25, 26. 13 The HBC would have had Vancouver’s chart published in 1798 on which Burrard’s Canal and Howe Sound are depicted. 14 “Their Luggage as well as that of the other tribes is transported up and down the River on Rafts, which are formed by lying boards across two or more Canoes Kept 8, 10 or 12 feet asunder” (Barnston, 25 August 1827, in Maclachlan 1998: 34). 15 Barnston in Maclachlan 1998: 39. 16 On August 2, 1827, Barnston noted the location of the Indian fishery and the first purchase of fresh salmon from that fishery: “The arrival of this fish is hailed by the natives with joy & festivity. At this time they are excellent, but only to be had at the Rapids above, where in the course of the season great quantities of them are taken by the natives and dried for winter provisions” (Barnston in Maclachlan 1998: 30). In a footnote, Maclachlan states that the rapids were first named Simpson’s Falls following the Governor’s expedition down the Fraser in October 1828, and that Fort Yale was established there in 1847(Maclachlan 1988: 246, footnote 30). In 1858, former HBC chief trader A.C. Anderson described the “Falls” as a series of rapids about 3 miles in length where, during the summer season, the rocky shores are “thronged by Indians from the lower country, who resort thither for the salmon fishery.” The

July 30, 2013 Page 3

Squamish Fishing on the Fraser River as the journal begins near the end of June after the Squamish had arrived based on the pattern of the subsequent three years. On September 30, 1827, the Squamish Chief Whapplakainum, arrived at the fort and “traded 20 Beaver Skins.” The earlier group of Homes were accused of theft from the Hudson’s Bay Company and the Chief undertook to retrieve the stolen property.17

The Squamish are recorded as passing by the fort up to the fishery throughout 1828. The first mention of the Squamish is on April 23, when “five canoes of the Whooms passed up the river with their families.”18 On April 27, “four more canoes of the Whooms tribe passed by.”19 On May 4, McMillan recorded “more Whooms going above with their families to the fisheries.” Some camped opposite the fort until they “removed downwards” on May 9.20 On May 14, McMillan described the Whoomes as one of the tribes “about us,” and on May 22, McMillan noted “a Couple of Large Canoes of Whooms [with about 15 men ea.} who were going up after a Slave that deserted.”21 On June 26, “Ten Canoes of Whooms passed up with their families.”22 On July 3, “8 Canoes of Whoomes passed up to the Fishing place”23 and on July 29, “several families of Whooms…. passed up”24 The Squamish returned down the river in late September. On September 25, 1828, McMillan noted “200 canoes of Whooms Stopped along Side of the wharf – They are on their way to Burrard’s Canal for the winter - They are a very bold impertinent Set, and always disposed to give trouble - ….. They had the Body of their Chief, who died 3 days ago, Carrying him to their lands up Burrard’s Canal. He was an excellent Indian and much attached to the Fort.”25

There are no entries recording the arrival of the Squamish on the Fraser River in 1829 in McDonald’s journal. In mid-June, a “Young Whoomes, nephew of the Chief of that Tribe that died up this river during the Salmon Season…” was supplied with a trap from the fort. He returned two weeks later with five pelts. McDonald commented: “we hope the young man will prove deserving of the indulgence we mean to Show him as leading man.”26 On 16 August 1829, McDonald reported the death of the “young widow, the wife of the Whoomes Chief” who died in 1828, and had subsequently become the wife of one of the Kwantlen chiefs.27 On October 2, 1829, “the Whoomes tribe passed down today, but there was no trade with them Saving a few trifles given for Salmon oil. {We could afford to buy nothing from them Saving a few Bladders of Oil}. Our newly Created Young Chief was not with them - at first they Seemed rather Shy, foot of the “Falls” was located 12 miles above Fort Hope which was located near the mouth of the Coquihalla River. Spuzzum was located 6 miles above the “Falls” (Anderson 1858: 5, 6). 17 Barnston in Maclachlan 1998: 39. 18 McMillan in Maclachlan 1998: 60. 19 McMillan in Maclachlan 1998: 60. 20 McMillan in Maclachlan 1998: 61, 62. 21 McMillan in Maclachlan 1998: 62, 64. 22 McMillan in Maclachlan 1998: 66. 23 McMillan in Maclachlan 1998: 67. 24 McMillan in Maclachlan 1998: 69. 25 McMillan in Maclachlan 1998: 75. 26 McDonald in Maclachlan 1998: 118. 27 McDonald in Maclachlan 1998: 124.

July 30, 2013 Page 4

Squamish Fishing on the Fraser River which we knew to proceed from Some dread they had of us; and that dread originated in idle Stories Circulated by the grumbling to the prejudice of the Others – we of Course assured them that whatever might be the differences between them they had nothing to fear from us & with which they Seemed perfectly Satisfied – They Consist of about 40 canoes & pass the winter in Burrard’s Canal.”28 On 18 October, 1829, “our young Woomes” Chief arrived and traded a few beaver and part of an elk at the fort.29

On April 29, 1830, the “Whoomus Tribe to the number of 60 Canoes” camped on the bank opposite the fort. The next day there was a ceremony between the Quaitlanes [Kwantlen] and the Whoomis in which the Kwantlen received a woman from the Squamish.30 On the entries for May 10, 11, and 12, 1830, McDonald noted that “the Whomes take an immense quantity of the Small fish [eulachon]” on the Fraser River. About a week earlier on May 4, 1830, McDonald had recorded the arrival of the “Small fish called Ulachans [eulachon]…”31 On May 17, 1830, McDonald “understood” that “two war Canoes from the Whoomes Camp went off up the river before day light, and Causes Some uneasiness among the natives here.” The warriors returned the next day “without having done much execution…”32 The journal entries for 1830 end without recording the departure of the Squamish.

In the 1830 Hudson’s Bay Company census by McDonald, the population of the Hoomus [Squamish] was given as 90 men. A total population of 470 is estimated if the ratio of men to total population from the 1838 census is applied.33 In the 1838 census by Yale, the clerk in charge of Fort Langley, the population of the Skohomus [Squamish] was 784, including 150 “men of family.”34 As the HBC fort personnel did not travel far from the fort, the population numbers for the Squamish likely reflect those people who were at the Fraser River for the fisheries rather than the total population. This conclusion is also supported by the number of canoes.

In 1858, George Gibbs, a lawyer with extensive ethnographic experience, drew a map of the Fraser River which depicted a Squamish village, Keh-kuit, on the south bank of the Fraser River opposite Ch-tsh-lus Creek.35 In his journal, Gibbs recorded on March 9, 1858, that the expedition “camped at a fishery usually occupied by the Squamish tribe in the season, called Keh-kait, on the south side of the river some ten or twelve miles from the mouth”36 Kennerly, a member of

28 McDonald in Maclachlan 1998: 129. 29 McDonald in Maclachlan 1998: 131. 30 McDonald in Maclachlan 1998: 147. 31 McDonald in Maclachlan 1998: 147, 148. 32 McDonald in Maclachlan 1998: 148. 33 McDonald in Maclachlan 1998: 220. Galois, Robert (1994). ‘The Native population of the Fort Langley Region, 1780-1857: A Demographic Overview.’ Report submitted to Parks Canada, July 1994: Appendix 2, 66. 34 The census is dated 1 January 1839. Galois 1994: Appendix 3, 68. 35 Gibbs was an American with the British-American Northwest Boundary Commission. Gibbs, G. ([1858]). Map: Lower Fraser, 9 March 1858. National Archives of the United States. International Boundary Commission, Record Group 76, Series 68, Folder 1, Map 1. Washington, D.C. 36 Gibbs 1858 Journal.

July 30, 2013 Page 5

Squamish Fishing on the Fraser River the same expedition, wrote: “.... We ….are now encamped where the Sqah-mist [Squamish] come to fish; & all around us are extensive remains of their huts.”37

In the colonial period, the Squamish are noted as camping at the western end of New Westminster in 1862.38 In the late 1800s and early 1900s, Charley Squamish lived at kikáyt. In correspondence files of the Department of Indian Affairs, he is referred to as “Chief Charley Squamish.” His Squamish name was sxelíltn.39

In 1969, Squamish elder Dominic Charlie40 stated that the Squamish people had always gone to the Fraser River to catch sockeye salmon. The Squamish would travel around Point Grey by canoe and then up the river to their camp at kikáyt, opposite New Westminster. Another Squamish elder, Buffalo Mathias,41 stated that the Squamish travelled to kikáyt by means of the trail from Port Moody to New Westminster. He added that kikáyt has always been a Squamish fishing camp.42

In conclusion, it is my opinion that in the nineteenth century, salmon was the principal food for the Squamish and that the Fraser River was a major source of salmon for the Squamish. It is also my opinion that the Fraser River salmon fishery was a key component of the Squamish economy in the early nineteenth century. The Squamish annual seasonal pattern of arriving on the Fraser River in April and returning to Burrard Inlet in late September/early October was well established in the late 1820s, leading me to conclude that this was an indigenous long term pattern in existence since before contact with Europeans. Further, it is my opinion that the time of year that the Squamish were on the Fraser River at the upriver salmon fishery indicates that sockeye was the major species of salmon harvested.

37 Kennerly, C. B. R. (1858). Diary: “A Trip of Fraser and Harrison’s Rivers, 8 March to 5 April 1858," 9 March 1858. National Archives of the United States. International Boundary Commission, RG 76, Entry 196, Kennerly Diary, 8 March – 5 April 1858. Washington, D.C.: 2.). 38 Crain, S. et al. (1862). Correspondence: Silas Crain et al to Young, Colonial Secretary (petition), 14 July 1862. BC Archives. GR 1372 Colonial Correspondence, File 1346, microfilm reel B-1354. Petitions - 1862. Victoria. 39 Charley Squamish, Chief (1910). Correspondence: Chief Charley to [Indian Affairs] Ottawa, 20 February 1910. Library and Archives Canada. RG 10, Volume 7787 File 27153-22, MIKAN no.2039625, Microfilm reel C-12066. New Westminster Agency - Surveys of Land on the Musqueam, and Langley Reserves (Plans), 1891-1931. Ottawa; Bouchard and Kennedy. Squamish Indian Land Use and Occupancy, 1986: 294, footnote 70. 40 Dominic Charlie was born in 1866. 41 Buffalo Mathias was born in 1920. 42 Bouchard, R. and D. Kennedy. Squamish Indian Land Use and Occupancy, 1986: 294.

July 30, 2013 Page 6

Squamish Fishing on the Fraser River

References

Anderson, A.C. (1858). Handbook and Map to the Gold Region of Frazer’s and Thompson’s Rivers. San Francisco: J.J. LeCount.

Barnett, Homer (1955). The Coast Salish of British Columbia. Eugene Oregon: University of Oregon Press.

Bouchard R. and D. Kennedy. Utilization of Fish, Beach Foods and Marine Mammals by the Squamish Indian People of British Columbia: 1976: 9-22.Bouchard, Randy and Dorothy Kennedy (1986). Squamish Indian Land Use and Occupancy, Report prepared for the Squamish Indian Band Council, North Vancouver December 14, 1986.

Charley Squamish, Chief (1910). Correspondence: Chief Charley to [Indian Affairs] Ottawa, 20 February 1910. Library and Archives Canada. RG 10, Volume 7787 File 27153-22, MIKAN no.2039625, Microfilm reel C-12066. New Westminster Agency - Surveys of Land on the Musqueam, and Langley Reserves (Plans), 1891-1931.

Crain, S. et al. (1862). Correspondence: Silas Crain et al to Young, Colonial Secretary (petition), 14 July 1862. British Columbia Archives. GR 1372 Colonial Correspondence, File 1346, microfilm reel B-1354. Petitions - 1862. Victoria.

Duff, Wilson (1952). ‘The Upper Stalo Indians.’ Anthropology in British Columbia, Memoir No.1. Victoria: British Columbia Provincial Museum.

Galois, Robert (1994). ‘The Native population of the Fort Langley Region, 1780-1857: A Demographic Overview.’ Report submitted to Parks Canada, July 1994

Gibbs, George (1855 -1858). Excerpts from No. II, Journal V Notes, N.W.B.S. George Gibbs Papers ca. 1850-53, 1857-60. Smithsonian Institution Archives, Record Unit 7209, Folder 1, Box 1.

Gibbs, George, ([1858]). Map: Lower Fraser, 9 March 1858. National Archives of the United States. International Boundary Commission, Record Group 76, Series 68, Folder 1, Map 1. Washington, D.C.

Hill-Tout, Charles (1900). Notes on the Skqomic [Squamish] of British Columbia, A branch of the great Salish Stock of North America. Reprinted in Ralph Maud (1978). The Salish People. Volume II: The Squamish and the Lillooet. Vancouver: Talonbooks.

Kennedy, Dorothy and Randy Bouchard (1976). “Utilization of Fish, Beach Foods and Marine Mammals by the Squamish Indian People of British Columbia.” British Columbia Indian Language Project, Victoria.

July 30, 2013 Page 7

Squamish Fishing on the Fraser River

Kennerly, C. B. R. (1858). Diary: “A Trip of Fraser and Harrison’s Rivers, 8 March to 5 April 1858," 9 March 1858. National Archives of the United States. International Boundary Commission, RG 76, Entry 196, Kennerly Diary, 8 March – 5 April 1858. Washington, D.C.

Kew, Michael (1992). “Salmon Availability, Technology, and Cultural Adaptation in the Fraser River Watershed.” Chapter 4 in A Complex Culture of the British Columbia Plateau: Traditional Stl’átl’imx Resource Use, edited by Brian Hayden. Vancouver: UBC Press.

Lamb, W. Kaye, ed. (1960). The Letters and Journals of Simon Fraser 1806-1808. Toronto: The Macmillan Company of Canada Limited.

Maclachlan, Morag, editor (1998). The Fort Langley Journals, 1827-30. With Contributions by Wayne Suttles. Vancouver: UBC Press.

Suttles, Wayne (1990). ‘Central Coast Salish.” In Volume 7. Handbook of North American Indians: Northwest Coast, Wayne Suttles editor. Washington, D.C.: Smithsonian Institution: 453-475.

Suttles, Wayne (1998). ‘Names in the Fort Langley Journal.’ Appendix E in Maclachlan 1998: 233-238.

Suttles, Wayne (1998). ‘The Ethnographic Significance of the Fort Langley Journals.’ In Maclachlan 1998: 163-210.

July 30, 2013 Page 8 ANNEX B

ANNEX C

Appendix C.4 – Squamish Nation

I - Background Information The Squamish Nation (Squamish) is a Coast Salish First Nation located on the southwestern coast of British Columbia (BC) near Vancouver Island, Gibson's Landing, and the Squamish River watershed. Squamish’s traditional territory extends from the Lower Mainland to Howe Sound and the Squamish Valley watershed. Squamish has stated that they rely on their asserted traditional territory to support their way of life and for the meaningful exercise of their Aboriginal rights.

Squamish has 24 reserves and 4,163 registered members, 60% of whom live on reserve. Their main reserves are near the town of Squamish, BC and around the mouths of the Capilano River, Mosquito Creek, and Seymour River and on the north shore of Burrard Inlet in North Vancouver. The ancestral language of the Squamish People is the Squamish language, Skwxwú7mesh Sníchim. The language is considered nearly extinct today.

The Squamish filed a protective Writ of Summons in the BC Supreme Court on December 10, 2003, asserting Aboriginal title on behalf of the Squamish Indian People to a territory identified in the writ. Squamish also filed a Statement of Intent to negotiate a treaty, which was accepted by the British Columbia Treaty Commission in December 1993. Presently, Squamish is in the third stage of the treaty process, which is the negotiation of a framework agreement.

II - Preliminary Strength of Claim Assessment  The components of the Project which intersect with Squamish’s identified traditional territory include approximately 15 kilometres (km) of the pipeline routing, the Burnaby Terminal and Westridge Marine Terminal (WMT), as well as the marine shipping activities. It is estimated that 35 km of the marine shipping route would pass within the southern portion of Squamish’s identified traditional territory.  The Crown’s preliminary assessment of Squamish's claim for Aboriginal rights over the area which spans the terminus located at the Burnaby holding facility to the Fraser River is assessed as ranging from a weak to moderate prima facie Aboriginal rights claim. The claim appears strongest (i.e. moderate) at the terminus of the pipeline in Burnaby, and diminishes as the pipeline travels inland and towards the Fraser River1.  The Crown’s preliminary assessment is that Squamish has a weak prima facie claim to Aboriginal title over the portion of the Project that spans the terminus in Burnaby to the Fraser River2.  The Crown’s preliminary assessment of Squamish’s prima facie claim for Aboriginal rights to harvest marine resources within the marine shipping corridor of the Project that spans from the terminus of the pipeline in Burnaby to the portion of the Strait of Georgia that is proximal to the South Arm of the Fraser River is assessed as ranging from moderate to weak. Areas of moderate

1 Squamish First Nation: Review of Anthropological and Historical Sources (revised December 2010). 2 Ibid.

1 prima facie claims include the portion of the shipping route that is proximal to the western shore of Point Grey and includes areas along the shipping route within the western section of Burrard Inlet, an area that ethnographers consider to fall within the secondary territory for the Squamish and where there is evidence to support historic use of the area for seasonal camping and resource gathering.  The Crown’s preliminary assessment of Squamish’s prima facie claim for Aboriginal title over the upland areas that roughly parallel the marine shipping corridor of the Project ranges from weak to weak-to-moderate. Squamish's core territory is identified as Howe Sound and the Squamish River watershed. Ethnographers consider Point Atkinson as the boundary of Squamish core territory. Squamish movement into Burrard Inlet east of the Lion's Gate Bridge on a more permanent basis probably occurred in the 1860s, following the opening of the saw mills and associated employment. The stronger claims may occur in western Burrard Inlet, given its relative proximity to areas of known Squamish habitation in 1846 in Howe Sound, and increasing year round use of this area in the mid-1800s.

III - Involvement in the NEB and Crown Consultation Process Given the nature and location of the Project, and the potential impacts of the Project on Squamish’s Aboriginal Interests, the Crown is of the view that the legal duty to consult Squamish lies at the deeper end of the Haida consultation spectrum. Squamish was placed on Schedule B of the Section 11 order issued by the BC Environmental Assessment Office (EAO), which affords Squamish opportunities to be consulted at a deeper level.

Squamish was an active participant in the NEB hearings, contributing significantly to the NEB review of the Project as an intervenor. Squamish submitted written evidence, including a final written argument (A4X5E7) and oral traditional evidence, including an oral summary argument, with the NEB describing their asserted rights, customary law, and concerns regarding the Project. Squamish provided responses to information requests (A4R4D7) and has filed multiple rounds of information requests and responses to information requests by other intervenors including the Government of Canada.

Squamish has been, and remains, actively engaged with the Crown with respect to Project review and the consultation process. Squamish has submitted detailed correspondences with the Crown (including Ministers). The Crown exchanged numerous pieces of correspondence with Squamish regarding the Crown’s proposed approach to consultation on the Project, and met with Squamish officials on September 11, 2015, November 27, 2015, and on October 18, 2016.

Squamish Chief Ian Campbell met with the Minister of Natural Resources on February 8, 2016, June 7, 2016, and July 5, 2016.

In exchanges with the Crown, including with the Minister of Natural Resources directly, Squamish has communicated that it is opposed to the Project.

2 Squamish has filed an application for Judicial Review of the NEB Recommendation Report for the Project in the Federal Court of Appeal.

Squamish was awarded $44,270 including travel for 1 to hearing from the NEB to support participation in the NEB process. The Major Projects Management Office (MPMO) offered Squamish $12,000 in participant funding for consultations following the close of the NEB hearing record. MPMO offered Squamish an additional $14,000 to support their participation in consultations following the release of the NEB Recommendation Report. Squamish signed contribution agreements with the MPMO in response to both of these offers, for a total of $26,000 in allocated funding.

On October 19, 2016 EAO offered Squamish $5,000 in capacity funding to participate in consultation with the Crown.

The Crown provided a first draft of this Consultation and Accommodation Report (Report) to Squamish for review and comment on August 17, 2016. Squamish provided comments on the draft Report to the Crown on September 19, 2016.

In comments provided to the Crown, Squamish indicated that they believe the draft Report only offers general conclusions and did not provide an adequate assessment of the Project’s impacts on Squamish. It was further proposed by Squamish that a protocol between the Crown and Squamish is a practicable step towards the development of a Report which is acceptable to Squamish. These comments have been considered and addressed in this version of the Report.

A second draft of this report was provided to Aboriginal groups for review and comment on November 3, 2016. The Crown has not received comments from Squamish on the second draft.

Squamish provided a separate Aboriginal group submission to the Crown on November 17, 2016, which included comments on Provincial conditions.

IV - Summary of Key Squamish Issues and Concerns Raised The Crown has gained its understanding of Squamish’s issues and concerns through the NEB hearing process, and through correspondences and meetings with the Crown consultation team. In addition, the Crown has considered information regarding the proponent’s engagement with Squamish, as described in the proponent’s Aboriginal Engagement Report (July 2016).

This section offers a summary of the key issues raised by Squamish, and does not present the views of the Crown as to whether it agrees or not with the issues. The Crown’s assessment of the impact of the Project presented in the subsequent section incorporates a consideration of these issues and includes the Crown’s views and conclusions. The Crown’s understanding of Squamish’s key Project-related issues and concerns are summarized below:

3 Review Process and Methodology Squamish has stated that the NEB process was fundamentally flawed. Squamish identified several concerns related to the NEB and Crown consultation processes, including: (i) Crown’s duty to consult; (ii) reliance on the NEB process; (iii) Crown’s failure to consult; (iv) inadequate or not yet provided Participant Funding Program (PFP) funding for full participation in the NEB process; (v) quasi-judicial process is not an adequate means to consider Aboriginal rights and interests due to insufficient information to review impacts NEB's ability to draw conclusions on potential Project impacts on Aboriginal Interests; (vi) procedural fairness questioned given the lack of cross-examination opportunities on evidence given and ‘inadequate’ proponent responses; (vii) no timeline extensions, inadequate time to respond; and (viii) inability to provide Oral Traditional Evidence commentary on new route.

In the Final Argument submitted to the NEB, Squamish indicated that the NEB’s quasi-judicial process is adversarial and viewed as contrary to the purpose of consultation and reconciliation. Squamish indicated that their participation in the NEB process was further restricted by short timelines for reviewing large volumes of information, and responses to Squamish’s information requests were incomplete and delayed. In addition, Squamish stated that they were not engaged on a “government to government” basis during the NEB process and that the NEB did not recognize Squamish’s manner of managing its lands and waters or any of Squamish’s cultural values.

In a letter sent to the EAO on May 24, 2016, Squamish identified issues and concerns with the consultation process including the failure of the Province to consult Squamish Nation on the EAO-NEB Environmental Equivalency Agreement for the Project, and Squamish’s disagreement with the reliance of the Province on the NEB report as the provincial assessment report.

In a letter to the Crown on September 19, 2016, Squamish raised concerns with the Crown’s use of biophysical indicators as a proxy for impacts on Aboriginal rights, expressed a desire for a Squamish specific consultation process, an assessment of the nature and scope of Squamish’s rights and title potentially impacted by the Project, studies examining how exactly Squamish’s rights and title would be impacted by a variety of spill scenarios, information about the fate and behaviour of diluted bitumen and the risks to Squamish’s rights and title, an assessment of alternative marine terminal locations, an assessment of the Westridge Marine Terminal expansion and its impacts on Squamish’s rights and title, a comprehensive risk assessment of the Project, and an assessment of the seismic risks to the Project. Squamish stated that unless these requests are fulfilled they do not have enough information to fully understand how the Project will impact their rights and title, and therefore are unable to discuss appropriate accommodation proposals.

In meetings with the federal Crown on September 11, 2015 and November 27, 2015, and in a meeting with the joint Crowns on October 18, 2016, Squamish expressed a desire to engage in a Squamish specific project review and consultation process. During the 2015 meetings, Squamish suggested that the Project could be reviewed using a similar process to the one Squamish undertook when reviewing the Woodfibre LNG project. 4 Cultural, Social, and Spiritual Impacts Squamish stated that the whole of Squamish’s traditional territory is of cultural and spiritual importance to Squamish. Water is of particular spiritual and cultural importance to Squamish, and plays a vital role in spiritual stories and cultural practices: “water is sacred, it is life giving, it has a spirit” (A4X5E7). Squamish is critically concerned about the significant impacts of the Project on their territory, including the people, land, resources, sites and waters throughout that territory, and would like to see it protected. Squamish stated that it does not have the capacity to do an inventory of all the cultural and spiritual places potentially impacted by the Project, or of all the potential impacts of the Project generally. Squamish stated that without such an assessment having been undertaken, the extent of the impacts on Squamish culture and society cannot be fully understood at this time.

Squamish also has concerns that the Project has the potential to interrupt traditional land and resource use activities, particularly in regards to access to and movement through sacred waters (including wetlands and underground aquifers) in their traditional territory, and salmon and seafood harvesting activities. The following areas within Squamish’s asserted traditional territory were noted as being of particular concern: Xépxpayay (East Vancouver), Skwachýs region that connects to Temtemíxwtn (waterbody), Howe Sound, Burrard Inlet, Deer Lake, Burnaby Lake, and Buntzen Lake.

Squamish believes that Burnaby and Deer Lake connect to Buntzen Lake, which they believe connects to the spirit realm through underground aquifers. In response to the Crown’s Information Request, Squamish clarified: “The issue as expressed encapsulates a concern of Squamish about the interconnectedness of the waterways within Squamish territory from an environmental perspective and a spiritual perspective and the impacts of the Project on those waterways. However, the issue as expressed does not encapsulate the breadth of Squamish’s concern about the impacts of the Project on these waterways, particularly of a spill associated with the Project, or on the cultural and spiritual practices and harvesting practices of Squamish generally. Squamish is greatly concerned about the impacts of the Project, including any accidents or malfunctions associated with the Project, on the waterways and marine environment within Squamish territory” (A71223).

Squamish Nation is also concerned about loss of access to Squamish territory (e.g., ancestral village sites in Howe Sound, burial grounds on Keats Island) and navigable waters from increased shipping from the Project (Burrard Inlet). The ability to move freely over the waters of Squamish’s asserted traditional territory is considered by Squamish to be integral to their culture and identity.

Squamish expressed concerns about burial sites not being protected by the Archaeological Branch or by the Graveyard and Cemetery Act and that the Project may affect their long house tradition and the interrelated use of land, waters and streams for cultural and spiritual purposes.

Environmental Effects The Project has the potential to extensively impact the key areas that Squamish relies on for harvesting resources, and further industrialize areas that Squamish has historically relied on to harvest resources, removing any chance of rehabilitation. Squamish identified concerns about the direct and indirect 5 impacts on fish and fish-bearing waterbodies that will result from the Project, including critical concerns about the impact of increased tanker traffic in the Marine RSA on the practice of Squamish rights, and on the ability of Squamish to access places of importance within their territory such as salmon harvesting areas. Squamish believes that the information made available during the NEB review process was not sufficient to give them satisfaction about the adequacy of the marine shipping safety regime.

Squamish is concerned that the interaction of Project-related marine vessel traffic with land-based activities was not considered. Squamish believes this fails to consider the profound connections between land, sea, and culture of the Squamish people that are potentially affected by the Project.

Cumulative Effects Squamish is concerned about the contribution of the Project to the cumulative effects of industrial development in Squamish’s territory. One of the Squamish’s key concerns is about the potential cumulative effects impacts to marine mammals, particularly killer whales.

Squamish is concerned about further industrialization, and the effect that this will have on the ability to revitalize Burrard Inlet and Howe Sound, and regain the meaningful exercise of their Aboriginal rights in certain areas.

Squamish has stated that revitalization efforts and development are not mutually exclusive concepts and that, in order for development to not compromise territory and culture it must be done responsibly in partnership with First Nations.

Impacts on Aboriginal Rights and Title Squamish identified concerns about impacts on Squamish fishing activity (herring, herring roe, crabs, urchins) in Burrard Inlet and Squamish efforts to rebuild fish stocks and habitat. Squamish has concerns regarding impacts on rebuilding killer whale populations in Howe Sound and the herring stocks on which the whales depend. Squamish has undertaken (or is in the process of undertaking) habitat restoration efforts and revitalization of the spawning grounds in respect of McKay Creek and Mosquito Creek. Squamish also plans to undertake habitat restoration efforts and revitalization of the spawning grounds in respect of Lynn Creek, Seymour River, and Capilano River.

In response to the Crown’s Information Request, Squamish clarified: “Squamish is concerned about the impacts of the Project on a wide variety of species, and the environment on which they depend. The species listed represent some of the species of concern to Squamish, but do not represent an exhaustive list of the species of concern to Squamish. The issue as expressed further does not capture the level of Squamish restoration efforts and the concerns about the impacts of the Project on those efforts. Impacts to fish and fish habitat within Squamish territory by the Project have consequent impacts on the practice of Squamish rights, cultural and spiritual practices and the health and well-being of Squamish people. The degree of potential impacts to the practice of Squamish’s rights and title as a result of the impacts of the Project to fish and fish habitat is not represented in the issues as described. Project impacts on fish and fish habitat cannot be used as a biophysical proxy for impacts on corresponding 6 rights and title interests that depend on these resources, given the complex and unique relationship that Squamish has with the fish and fish habitat within Squamish territory” (A71223).

Squamish raised concerns about the interruption of travel through their territory and emphasized the importance of the water ways in and around Burrard Inlet, Southern Howe Sound, and the lower Fraser River as Squamish traditional and current transportation corridors.

Squamish expressed concerns about loss or threat to its marine based economic interests and business properties from the Project, and limitations to other development opportunities on Squamish’s asserted traditional territory.

In a letter sent to the MPMO on September 19, 2016, Squamish indicated that the scope of Squamish’s Aboriginal rights and Interests that stand to be impacted by the Project are not yet known and have not been adequately assessed.

Human Health and Safety Squamish has stated that the assessment of the Project on human health effects was incomplete and underrepresented, and that the Project would increase risks to human health due to its proximity to densely populated areas. Squamish is particularly concerned about the consumption of contaminated traditional foods within their territory.

Accidents or Malfunctions Squamish identified concern regarding the impact of an oil spill and spill response with respect to environment, water, fish, wildlife, marine resources including plants and micro-organisms within Squamish traditional territory, including the Burrard Inlet and the Fraser River Estuary. The potential impacts of a diluted bitumen spill on fish and fish habitat is of significant concern to Squamish. Squamish stated that the spill response procedures and protocols were insufficiently defined to safeguard their waters and resources, and that the residual or mitigated impacts of accidents and malfunctions cannot yet be adequately assessed. Squamish expressed concerned with the lack of commitment from Trans Mountain to provide suitable drinking water for Squamish Nation in the event of contamination, or the identification where surplus capacity could come from.

Squamish is worried that there are not adequately defined roles and responsibilities in the event of a spill or sufficient resources to respond to, and compensate for loss arising from, a spill. This is based on Squamish’s experience with the proponent’s response to past spills from the existing Trans Mountain pipeline.

Squamish also identified as a concern potential adverse effects due to accidents or malfunctions related to possible seismic activity that may impact Squamish Aboriginal rights. Squamish is concerned about the impact of seismic activity on all aspects of the Project, the event of Project equipment failure due to seismic activity, including failure at the Burnaby Mountain Terminal, the pipeline and the WMT, and any resulting impacts to Squamish, including our rights and title. 7 Squamish’s Response to NEB Recommendation Report In a letter to the MPMO dated September 19, 2016, Squamish indicated that deficiencies in the NEB process – particularly the inadequacy of participant funding to fully participate in the NEB process, and the notion that a quasi-judicial process is not an adequate means to consider Aboriginal Interests – contributed to the subsequent inadequacy of the NEB Recommendation Report. Furthermore, Squamish indicates that concerns that were raised with the NEB have not been addressed in the NEB Recommendation Report.

V - Potential Impacts of the Project on Squamish’s Aboriginal Interests A discussion of the Crown’s assessment approach and understanding of the potential impacts of the Project on Aboriginal Interests is provided in Section 2.4.3 and Section 4.3 of this report, respectively. The Crown recognizes that areas within the asserted traditional territory of each Aboriginal group may be particularly important and valuable for specific qualities associated with traditional cultural or spiritual practices. There are areas that may also be used for traditional harvesting activities (e.g., harvesting, trapping, fishing and gathering), including by individual members of families.

The discussion of this section focuses on the potential impacts of the Project on Squamish’s Aboriginal Interests. These potential impacts are characterized by considering how the Project could affect several factors important to Squamish’s ability to practice Aboriginal Interests. Where information was available, the Crown considered the following:  Biophysical effects to values linked to Aboriginal rights (e.g. fish) that were assessed by the NEB;  Impacts on specific sites or areas identified as important to traditional use; and  Impacts on social, cultural, spiritual, and experiential aspects of exercising Aboriginal Interests.

Additional factors considered in the assessment of impacts on Aboriginal Interests are described in Section 2.4.3 of this Report. The Crown’s conclusion on the seriousness of Project impacts on Squamish’s Aboriginal Interests considers information available to the Crown from the NEB process, consultation with Squamish, Squamish’s engagement with the proponent, proponent commitments, recommended NEB conditions, as well as relevant proposed conditions of any Environmental Assessment Certificate issued by the Province.

The Crown understands that Squamish completed a third-party Traditional Use and Occupancy Study (TUOS), titled Squamish Traditional Use and Occupancy Study: Final Report, which was submitted as confidential written evidence to the NEB in May 2015. Redacted versions of the report (A4L7E3, A4L7E4) and written evidence (A4X5E7) were filed with the NEB. The TUOS summarizes Squamish’s traditional knowledge, values, and potential effects and mitigation as related to the Project. Approximately 501 traditional use and occupancy sites were identified in Southern Howe Sound, Burrard Inlet and Indian Arm, and the lower Fraser River. For confidentiality reasons, specific locations of traditional land and resource use activities and sites were not provided by Squamish in their TUOS. Squamish did not request any site-specific mitigation measures related to Project effects to their Aboriginal Interests.

8 The Crown understands that Squamish has a desire to keep its traditional use information confidential but hopes to discuss mechanisms through which information regarding any traditional use of the Project area can be shared with the Crown to inform the Crown’s assessment of Project impacts on its Aboriginal Interests.

Impacts on Hunting, Trapping and Plant Gathering Although the TUOS for the Project was filed confidentially with the NEB, the Crown acknowledges that the Project has the potential to impact Squamish’s Aboriginal rights to hunt, trap and gather plants. As described in the redacted TUOS, harvesting resources within Squamish territory is a key expression and component of Squamish people’s cultural identity and their heritage, and is part of what makes one Squamish. As summarized in the written evidence, Squamish community members continue to practice seasonal rounds travelling throughout their traditional territory. Hunted species include duck, pheasant, grouse, deer, elk, seals and sea lions. Community members also collect seagull eggs, and gather cultural and medicinal plants, clay, berries, broadleaf maple and cedar.

Squamish identified many concerns related to environmental effects of the Project on hunting, trapping, and plant gathering activities, in particular, significant impacts of the Project on Squamish territory, including the people, land, resources, sites and waters throughout that territory, and the desire to see it protected. Concerns regarding use of chemical dispersants and negative impacts on the environment, and the contribution of the Project to the cumulative effects to its territory were also raised. As described in the NEB Recommendation Report, Project-related activities are likely to result in low to moderate magnitude effects on soil and soil productivity, rare plants, lichens and vegetation communities of concern, old growth forests, wetlands, and terrestrial wildlife and wildlife habitat (including species at risk-listed species), marine mammals, and marine birds.

NEB conditions, if the Project is approved, would either directly or indirectly avoid or reduce potential environmental effects associated with hunting, trapping, and gathering activities (section 4.3.1 of this Report) and the proponent would implement several mitigation measures to reduce potential effects to species important for Squamish’s hunting, trapping, and plant gathering activities. The proponent is committed to minimizing the Project footprint to the maximum extent feasible, and all sensitive resources identified on the Environmental Alignments Sheets and environmental tables within the immediate vicinity of the RoW will be clearly marked before the start of clearing. Mitigation measures to reduce effects on habitat, limit barriers to movement, avoid attraction to wildlife to the work site, minimize sensory disturbance and protect site specific habitat features are outlined in the Project Environmental Protection Plan (EPP) and the vegetation and wildlife management plans (including a marine mammal protection program).The NEB imposed Condition 81 that requires the proponent to develop a WMT-specific EPP, including mitigation and monitoring plans, to be finalized in consultation with Fisheries and Oceans Canada (DFO) and potentially affected Aboriginal groups. The proponent is also required to conduct a post-construction monitoring program for marine mammals from the expansion of the WMT and post-construction monitoring reports. The proponent has committed to various mitigation measures to reduce effects of construction and operation of the WMT on marine birds and has committed to compile information regarding marine bird mortality and collision events 9 and to include that information in post-construction monitoring reports. For the marine shipping component of the Project, the proponent will also develop plans to implement, monitor and comply with marine shipping-related commitments in cooperation with affected Aboriginal groups.

Squamish raised concerns with potential Project-related impacts to specific locations and access to hunting, trapping, and plant gathering activities, including concerns related to the Project’s potential impacts on their ability to practice seasonal rounds in their traditional territory. Project-related pipeline construction and routine maintenance is expected to cause short-term, temporary disruptions to Squamish’s access to hunting, trapping and plant gathering activities, largely confined to the Project footprint for the pipeline and associated facilities.

The Crown understands that with pipeline construction and reclamation activities, disruptions to access may result in a loss of harvesting opportunities for Squamish. For traditional activities directly affected by the construction and operation of the WMT, these activities are not likely to occur within the expanded water lease boundaries during the operational life of the Project. Project-related marine shipping is expected to disrupt Squamish’s marine vessels and harvesters, and this could disrupt activities or access to hunting, trapping, and plant gathering sites. NEB conditions, if the Project is approved, would either directly or indirectly avoid or reduce potential access-related impacts associated with hunting, trapping, and gathering sites (section 4.3.1 and 4.33 of this Report) and the proponent would implement several mitigation measures to reduce potential effects on Squamish’s hunting, trapping, and plant gathering activities. These mitigations include management plans that include access management, scheduling and notification of Project activities, and environmental monitoring programs.

The Access Management Plan is intended to reduce disturbances caused by access, construction equipment and vehicle traffic, during and following construction in order to minimize disturbance to access to Squamish’s traditional lands. The proponent has committed to minimizing the development of access routes, controlling public access along the construction ROW, selecting appropriate access routes that cause the least disturbance to high quality, sensitive wildlife habitat, managing traffic on these routes and determining appropriate construction reclamation. The proponent has also committed to work with applicable resource managers, traditional land and resource users to define locations where access control is necessary, and what type(s) of access control will be implemented. In the event that hunting, trapping, and plant gathering sites are identified during ongoing engagement with Squamish prior to construction, the sites will be assessed, and appropriate mitigation measures will be implemented. As described in section 4.3.3, the proponent will be required to communicate Project- related vessel timing and scheduling to Aboriginal groups through a public outreach program (NEB Condition 131). This communication would allow Squamish community members to take measures to reduce potential disruptions from tankers and allow planning for hunting, trapping and plant gathering activities to take place that minimizes disturbance from Project-related tankers. Reduced harvests, while not expected to occur from temporary access restrictions, could impact Squamish cultural activities and sharing of marine food with the community. The proponent committed to working with Squamish to develop strategies to most effectively communicate the construction schedule and work areas to community members. 10

Squamish expressed concern with direct and indirect effects of the Project on social, cultural, spiritual, and experiential aspects of its hunting, trapping, and plant gathering activities, including impacts to human health from the use of chemical dispersants and contribution of the Project to existing cumulative effects. Short-term, temporary disruptions to Squamish’s hunting, trapping, and plant gathering activities from Project-related construction and routine maintenance activities could temporarily alter the behaviour of community members’ during construction. Reduced participation in traditional activities, while not expected to occur from temporary access disruptions within the footprint of the Project, could have spiritual and cultural impacts on community members.

The Crown understands that Squamish may experience noise disturbances and interruptions to traditional activities due to the WMT and Project-related marine shipping activities, and community members could be discouraged from travelling to hunting, trapping, and plant gathering sites that require these members to cross shipping lanes. NEB conditions, if the Project is approved, would either directly or indirectly avoid or reduce potential social, cultural, spiritual, and experiential effects associated with hunting, trapping, and plant gathering activities (section 4.3.1 of this Report) and the proponent would implement several mitigation measures to reduce potential effects to Squamish’s hunting, trapping, and plant gathering activities. The proponent is committed to to implementing weed management (as outlined in the Weed and Vegetation Management Plan) to reduce the potential for weed infestation following construction, and utilizing an Integrated Vegetation Management approach intended to reduce the use of herbicides and promote healthy ecosystems. Measures outlined in the proponent’s Reclamation Management Plan are intended to stabilize and revegetate affected lands to achieve land productivity along the construction ROW and footprint, equivalent to the adjacent land use. The Crown notes the proponent’s commitment to ongoing engagement with Aboriginal groups that are interested in providing traditional knowledge related to the location and construction of the Project. The proponent will also communicate Project-related vessel timing and scheduling to Aboriginal groups through a public outreach program.

The Crown has considered available information from the NEB process, consultation with Squamish, Squamish engagement with the proponent, the proponent’s proposed mitigation measures and the recommended NEB conditions, as well as relevant Provincial proposed conditions of any Environmental Assessment Certificate issued by the Province. In consideration of this information, the Crown expects impacts of Project construction and operation, and Project-related marine shipping activities on Squamish’s hunting, trapping and plant gathering activities would be negligible-to-minor. In reaching this conclusion, the Crown has considered several factors that have been discussed above, which are summarized as follows:  Project-related pipeline, facility, and WMT construction and operation, and marine shipping activities are likely to have low to moderate magnitude environmental effects on terrestrial, aquatic, and marine species harvested by Squamish;  Construction of WMT, the pipeline and associated facilities are likely to cause short-term temporary disruptions to Squamish’s community members accessing traditional hunting, trapping and plant gathering sites within the Project footprint; Project-related marine shipping 11 activities are likely to cause temporary disruptions to activities or access to sites during the period of time Project-related tankers are in transit through Squamish’s traditional territory;  Concerns identified by Squamish regarding Project-related effects on social, cultural, spiritual, and experiential aspects of their hunting, trapping and plant gathering activities.

Impacts on Fishing and Marine Harvesting Although the TUOS for the Project was filed confidentially to the NEB, the Crown acknowledges that the Project has the potential to impact Squamish’s Aboriginal rights to fish. As described in the TUOS and written evidence, Squamish traditionally harvested marine and aquatic resources for sustenance, ceremonial and commercial purposes, including trade. Presently, salmonid species are critical to Squamish people as a staple food and economic resource, and are an important component of identity and spiritual connection to the environment. The rivers and streams entering into Burrard Inlet have also served as important harvesting, transport, and cultural locations for Squamish, including, but not limited to, Lynn Creek, Mackay Creek, Mosquito Creek, Mahon Creek, Sister Creek, Seymour River and the Capilano River.

Squamish identified many concerns related to environmental effects of the Project on fishing activities, including impacts on fish and fish-bearing waterbodies, marine mammals and species at risk, in particular impacts on herring, herring roe, crabs, and urchins in Burrard Inlet. Squamish also expressed concern of the effects of dredging around the WMT for fish and fish habitat, and potential impacts on efforts to rebuild stocks, habitat restoration efforts, and revitalization of the spawning grounds. Concerns related to the use of chemical dispersants and contribution of the Project to the cumulative effects to its territory were also raised.

As described in the NEB Recommendation Report, Project-related activities could result in low to moderate magnitude effects on freshwater and marine fish and fish habitat, surface water and marine water quality. Moderate effects to fish and fish habitat in the terrestrial and aquatic environments would be localized to individual watercourse crossings, and effects to marine fish and fish habitat would be limited to a few or many individuals, where any potential serious harm would be compensated by offset measures. NEB conditions would either directly or indirectly avoid or reduce potential environmental effects on fishing activities (section 4.3.2 and 4.3.3 of this Report). A number of recommended NEB conditions require the proponent to file reports that will monitor Project-related impacts to freshwater fish and fish habitat, marine fish and fish habitat, and riparian habitats (NEB Conditions 71, 75, 92, 151, and 154).

With regards to specific concerns raised by Squamish, the proponent would implement several mitigation measures to reduce potential effects to species important for Squamish’s fishing activities. The proponent has committed to time watercourse crossing construction activities to occur within the least risk biological windows in an attempt to avoid causing serious harm to fish, has committed to working with Aboriginal groups to identify the most appropriate means of offsetting serious harm to marine fish and fish habitat, and has proposed the implementation of channel and bank reclamation measures at each watercourse crossing to help maintain the productive capacity of water bodies that 12 provide fish habitat. Further, the proponent has completed a preliminary offsetting plan for impacts on fish and fish habitat associated with construction and operation of the WMT. For Project-related marine shipping activities, the proponent will require all tankers to process and empty their bilges prior to arrival and lock the discharge valve of the bilge water while in Canadian waters.

Squamish identified Burrard Inlet and the rivers and streams entering into Burrard Inlet as important harvesting, transport, and cultural locations for Squamish, including, but not limited to, Lynn Creek, Mackay Creek, Mosquito Creek, Mahon Creek, Sister Creek, Seymour River and the Capilano River.

Squamish raised concerns with potential Project-related impacts to specific locations and access to freshwater fishing and marine fishing and harvesting activities, including the interconnectedness of the waterways, for example Burnaby and Deer Lake connection to Buntzen Lake to the east within Squamish territory, and disruptions to traditional activities, particularly in regards to salmon harvesting activities. Project-related pipeline construction and routine maintenance activities are expected to cause short- term, temporary disruptions to Squamish’s access to freshwater fishing activities. If construction and reclamation occur during the fishing season, there could be a potential reduction in access to waterways, staging areas, and fishing sites for Squamish community members. However, disruptions to access would largely be confined to the Project footprint for the pipeline and associated facilities during construction and reclamation.

The Crown understands that fishing and harvesting activities directly affected by the construction and operation of the WMT are not likely to occur within the expanded water lease boundaries during the operational life of the Project. Impacts on navigation, specifically in eastern Burrard Inlet, would exist for the lifetime of the Project, and would occur daily. Project-related marine vessels are expected to cause temporary disruptions to Squamish’s marine fishing and harvesting activities. Community members could be discouraged from travelling to marine fishing and harvesting sites that require these members to cross shipping lanes. Disruptions to Squamish’s marine fishing and harvesting activities are likely to be temporary when accessing fishing sites in the Burrard Inlet that require crossing shipping lanes, as community members would be able to continue their movements shortly after the tanker passes.

NEB conditions, if the Project is approved, would either directly or indirectly avoid or reduce potential access-related impacts associated with freshwater and marine fishing and harvesting sites important for Squamish (section 4.3.2 and 4.3.3 of this Report) and the proponent would implement several mitigation measures to reduce potential effects on freshwater and marine fishing and harvesting activities. These mitigations include access management plans, scheduling and notification of Project activities including Project-related marine vessel traffic, and environmental monitoring programs. As previously discussed, the proponent is committed to minimize disturbance to access to Squamish’s traditional lands, as described in the Access Management Plan. The proponent committed to working with Squamish to develop strategies to most effectively communicate the construction schedule and work areas to community members. As described in section 4.3.3, the proponent will be required to communicate Project-related vessel timing and scheduling to Aboriginal groups through a marine public outreach program (NEB Condition 131). This communication would allow Squamish community members to take 13 measures to reduce potential disruptions from tankers and allow planning for marine fishing and harvesting activities to take place that minimizes disturbance from Project-related tankers.

Squamish expressed concern with direct and indirect effects of the Project on social, cultural, spiritual, and experiential aspects of its fishing and harvesting activities, including loss of traditional resources, interconnectedness of the waterways, ability to practice traditional activities, impacts on the practice of Squamish rights, cultural and spiritual activities, and the health and well-being of Squamish people. As described previously, the Project pipeline and facility construction and routine maintenance is expected to cause short-term, temporary disruptions to Squamish’s fishing activities.

The Crown understands that this temporary interruption could mean that community members alter their fishing activities during construction, which could affect their participation in the traditional activity. Through the construction and operation of the WMT, the Crown understands that Squamish may experience noise disturbances and interruptions to cultural ceremonies along the shoreline, and loss or damage to visual quality of the Burrard Inlet. Project-related marine vessels are expected to cause temporary disruptions to Squamish’s marine fishing and harvesting activities. The Crown understands that community members could be discouraged from travelling to marine fishing and harvesting sites that require these members to cross shipping lanes. As described in section 4.3.3, the proponent will be required to communicate Project-related vessel timing and scheduling to Aboriginal groups through a public outreach program (NEB Condition 131). This communication would allow Squamish community members to take measures to reduce potential disruptions from tankers and allow planning for cultural events to take place that minimizes disturbance from Project-related tankers.

The Crown has considered available information from the NEB process, consultation with Squamish, Squamish engagement with the proponent, the proponent’s proposed mitigation measures and the recommended NEB conditions, as well as relevant Provincial proposed conditions of any Environmental Assessment Certificate issued by the Province. In consideration of this information, the Crown expects impacts of Project construction and operation, and Project-related marine shipping activities on Squamish’s freshwater fishing and marine fishing and harvesting activities would be up to minor. The Crown expects negligible-to-minor impacts as a result of the pipeline, and these effects would primarily occur during construction. The Crown expects minor impacts as a result of WMT and Project-related vessels, and these effects would occur during construction and operations. In reaching this conclusion, the Crown has considered several factors that have been discussed above, which are summarized as follows:  Project-related pipeline, facility, and WMT construction and operation, and marine shipping activities are likely to have low to moderate magnitude environmental effects on freshwater and marine species harvested by Squamish;  Construction of WMT, the pipeline and associated facilities are likely to cause short-term temporary disruptions to Squamish’s community members accessing traditional freshwater fishing and marine fishing and harvesting sites within the Project footprint; Project-related marine shipping activities are likely to cause temporary disruptions to activities or access to sites

during the period of time Project-related tankers are in transit through Squamish’s traditional territory; and  Concerns identified by Squamish regarding Project-related effects on social, cultural, spiritual, and experiential aspects of their freshwater fishing and marine fishing and harvesting activities.

Impacts on Other Traditional and Cultural Practices Although the TUOS for the Project was filed confidentially to the NEB, the Crown acknowledges that the Project has the potential to impact Squamish’s traditional and cultural practices. As described in the redacted TUOS, Squamish oral history and the archaeological record document longstanding patterns of trade between Squamish villages and with other Aboriginal peoples. Prior to the arrival of Europeans, trading took place via water and overland trails. Trade expanded to include new markets with the arrival of Europeans. Travel between Squamish and other Coast Salish communities was, and remains, significant to the maintenance of family ties.

Archaeological sites are important to present day Squamish community members, as they are considered time capsules that contain centuries of Squamish history, and are important “markers” of Squamish TUOS activities both past and present. Stories associated with sacred places and practices are still passed on within Squamish families and communities today. The rivers and creeks within Squamish territory have been, and continue to be, important sites for spiritual training and bathing. The longhouse is considered the hub of Squamish culture, religion, beliefs, and practices.

Squamish identified many concerns related to environmental effects of the Project on other traditional and cultural practices, including protection of burial and other sites of cultural and spiritual sites of importance, impacts on fish and fish habitat affecting cultural and spiritual practices, use of chemical dispersants, and the contribution of the Project to the cumulative effects to its territory. Squamish also expressed concern that burial sites are not being protected by the BC Archaeology Branch or under the Graveyard and Cemetery Act.

As described in section 4.3.4 of the Report, Project-related activities are not likely to result in significant adverse effects on the ability of Aboriginal groups to use land, waters or resources for traditional purposes. NEB conditions, if the Project is approved, would either directly or indirectly avoid or reduce potential environmental impacts on physical and cultural heritage resources (section 4.3.4 of this Report) and the proponent would implement several mitigation measures to reduce potential effects on physical and cultural heritage resources important for Squamish’s traditional and cultural practices. An environmental education program will be developed and implemented to ensure that all personnel working on the Project are informed of the location of known sacred sites and burial sites. The proponent has also committed to reduce potential disturbance to community assets and events by implementing several measures that include avoiding important community features and assets during RoW finalization, narrowing the RoW in select areas, scheduling construction to avoid important community events where possible, communication of construction schedules and plans with community officials, and other ongoing consultation and engagement with local and Aboriginal governments.

15 There are two longhouses located on Squamish traditional territory, at the Capilano and Seymour reserves. As summarized in the written evidence, numerous ancestral seasonal villages are located in the Burrard Inlet region, located close to important harvesting sites. The locations reflect the Squamish seasonal round, which was used to efficiently access the resources in traditional territory throughout the year. Most villages remained, at least partly, occupied throughout the year; however many people moved between winter villages on the Squamish and Cheakamus Rivers to sites on Howe Sound, Burrard Inlet, and the Fraser River.

Squamish raised concerns with potential Project-related impacts to specific locations and access to other cultural and traditional practices, including impacts of increased marine traffic on the traditional use of waterways for canoeing, and increased vessel traffic affecting the ability of Squamish to access places of importance within their territory. Squamish expressed that the whole of Squamish traditional territory is of cultural and spiritual importance to Squamish, cultural and spiritual sites are not confined to the areas along the North shore and Howe Sound. Project-related pipeline and facilities activities are expected to cause short-term disruptions that temporarily affect the ability of Aboriginal groups to access land, waters or resources for traditional purposes.

The Crown understands that Squamish’s opportunities for certain traditional and cultural activities will be temporarily interrupted, and there could be reduced access to travelways, habitation sites, gathering sites, and sacred areas. However, temporary disruptions to Squamish’s traditional and cultural practices would be largely confined to sites within the Project footprint for the pipeline and associated facilities. The Crown understands that there will be temporary interruptions to Squamish’s traditional and cultural practices, and there could be reduced access to traditional and cultural sites during Project operational activities. The expansion of WMT could impose restraints on Squamish’s ability to use the water and surrounding lands for traditional activities, given the acoustic and visual disturbance of WMT construction. Particularly, the Crown recognizes the location of Squamish’s traditional territory with emphasis that its main reserve is located directly across the inlet from WMT. However, the Crown notes that effects of construction on cultural activities would be temporary until completion of the WMT.

As outlined in section 4.3.4. of this Report, the NEB concluded that Project construction and operation would result in temporary impacts on Squamish’s use of water and water-based resources for traditional purposes. Project-related marine shipping activities could potentially disrupt traditional activities, travelways and cultural tourism (e.g. when tours can enter the water given the passing of tankers up the inlet). Conditions in the NEB Recommendation Report, if the Project is approved, would either directly or indirectly avoid or reduce potential impacts on physical and cultural heritage resources (section 4.3.4 of this Report). The proponent will be required to manage access to culturally sensitive sites along with an access management plan, and that the proponent has committed to ongoing engagement with Aboriginal groups in providing traditional knowledge related to the location and construction of the Project. The Crown notes that tankers will remain within existing shipping lanes and the proponent will be required to communicate Project-related vessel timing and scheduling to Aboriginal groups through a public outreach program (NEB Condition 131).

Squamish expressed concern with direct and indirect effects of the Project on social, cultural, spiritual, and experiential aspects of its other traditional and cultural practices, including the traditional use of waterways for canoeing, the interconnectedness of the waterways within Squamish territory from a spiritual perspective, and social impacts of the Project. Temporary interruptions may occur to Squamish’s cultural and spiritual practices, which could alter their participation in these activities during Project construction and operation activities, as well as during the transit of marine vessels associated with the Project.

The Crown has considered available information from the NEB process, consultation with Squamish, Squamish engagement with the proponent, the proponent’s proposed mitigation measures and the recommended NEB conditions, as well as relevant Provincial proposed conditions of any Environmental Assessment Certificate issued by the Province. In consideration of this information, the Crown expects impacts of Project construction and operation, and Project-related marine shipping activities, on Squamish’s other traditional and cultural practices would range from negligible-to-minor to minor. The Crown expects negligible-to-minor impacts as a result of the pipeline, and these effects would primarily occur during construction. The Crown expects minor impacts as a result of the WMT and Project-related vessels, and these effects would occur during construction and operations. In reaching this conclusion, the Crown has considered several factors that have been discussed above, which are summarized as follows:  Project-related pipeline, facility, and WMT construction and operation, and marine shipping activities are likely to have low to moderate magnitude environmental effects on traditional and cultural resources;  Construction of WMT, the pipeline and associated facilities are likely to cause short-term temporary disruptions to Squamish’s community members accessing traditional and cultural practice sites within the Project footprint; Project-related marine shipping activities are likely to cause temporary disruptions to activities or access to sites during the period of time Project- related tankers are in transit through Squamish’s traditional territory; and  Concerns identified by Squamish regarding Project-related effects on social, cultural, spiritual, and experiential aspects of their other cultural and traditional practices.

Impacts on Aboriginal Title The Crown notes that portions of the Project would be located within areas of Squamish’s traditional territory assessed as having moderate prima facie claim to Aboriginal title, in western Burrard Inlet, given its relative proximity to areas of known Squamish habitation in 1846 in Howe Sound, and increasing year round use of this area in the mid-1800s.

The Crown has actively consulted with Squamish throughout the NEB process and Crown consultation process at a deeper level in an attempt to better identify, understand, and resolve concerns relating to Aboriginal title. Concerns related to Aboriginal title raised by Squamish throughout the NEB and Crown consultation process include:

 Significant impacts of the Project on Squamish territory, including the people, land, resources, sites and waters throughout the territory, and Squamish would like to see it protected;  Protection of Squamish traditional territory and the ability to self-govern, including the regulation of the activities within that territory, is integral to the practice of Squamish Aboriginal rights;  Loss or threat to its marine-based economic interests and business properties from the Project, and limitations to other development opportunities on Squamish’s asserted traditional territory;  Squamish marine dependent businesses and properties may be severely impacted in the event of a spill from the Project;  Concerns about the NEB process, the development of that process, and the resulting inability of that process to meaningfully or adequately assess Project impacts on Squamish Aboriginal Interests, or develop appropriate measures to avoid, mitigate, or accommodate impacts on the same;  Squamish has not had the capacity to do an inventory of all the potential cultural and spiritual places potentially impacted by the Project (or of all the potential impacts of the Project generally); and  Impacts of seismic activity on the Project, in particular any resulting impacts on Squamish Aboriginal Interests.

The Crown provides a description of the potential impacts of the Project on Aboriginal title in section 4.3.5 of this Report, which includes a discussion of the numerous mitigation measures that avoid or minimize potential impacts associated with Project-related activities on Aboriginal title. Some of these mitigations include NEB Conditions that would either directly or indirectly avoid/reduce Project impacts associated with the degree of disturbance to terrestrial, marine and aquatic environments, ongoing engagement with Aboriginal groups that has the potential to reduce impacts on the ability of Aboriginal groups to manage and make decisions over the area impacted by the Project, as well as NEB Conditions that could provide Aboriginal groups with direct and/or indirect economic benefits if the Project is approved. It is noted that Squamish has not executed a Mutual Benefits Agreement with the proponent.

Given the potential impacts of the Project on Aboriginal title and various measures to address those impacts, as described in section 4.3.5, it is the Crown’s opinion that the Project is expected to have minor impacts on Squamish’s asserted Aboriginal title to the Project area.

Impacts Associated with Accidental Pipeline, Terminal or Tanker Spills Squamish expressed concerns related to direct and indirect effects of Project-related spills from both marine vessels and pipeline facilities on their Aboriginal Interests, including impact of an oil spill and spill response with respect to environment, water, fish, wildlife, marine resources including plants and micro- organisms within Squamish traditional territory. Specific concerns include impacts on the waterways and marine environment within Squamish territory, fish and fish-bearing waterbodies, and cultural, spiritual,

18 and harvesting practices. Squamish stated that the impacts remain unknown and that they have not received sufficient information to appropriately assess the impact of a spill.

The Crown understands Squamish’s concerns regarding spills, and the potential for a spill to impact Squamish’s use and occupation of its asserted traditional territory, ability to make decisions over the area impacted, and the potential for a spill to adversely impact any economic development aspirations Squamish has for its territory.

A discussion of the potential impacts of accidental spills on Aboriginal Interests is provided in section 4.3.6 of this Report. In consideration of this information and analysis, as well as information available to the Crown about Squamish’s Aboriginal Interests and concerns raised by Squamish during the NEB process and Crown consultation process, a spill associated with the Project could result in minor to serious impacts on Squamish’s Aboriginal Interests. The Crown acknowledges the numerous factors that would influence the severity and types of effects associated with a pipeline, terminal, or tanker spill, and that an impacts determination that relates the consequences of a spill to specific impacts on Aboriginal Interests has a high degree of uncertainty. In making this general conclusion, the Crown acknowledges that Aboriginal peoples who live nearby and rely on subsistence foods and natural resources are at greatest risk for adverse effects from an oil spill3.

VI - Conclusion The Crown understands the Project could adversely impact the ability of Aboriginal groups to use lands, waters and resources for traditional purposes. The Crown acknowledges that proponent commitments, recommended NEB conditions and the existing pipeline and marine safety regimes would only partially address these ongoing burdens and risks. Under the typical conditions for construction and operations of the pipeline and WMT, as well as for Project-related marine shipping activities between the WMT and the 12 nautical mile limit (J-buoy) through the Salish Sea and Strait of Juan de Fuca, the Crown expects impacts of the Project on the exercise of Squamish’s Aboriginal Interests would be up to minor.

The Crown is supportive of consultation requirements provided by the NEB and EAO in the various conditions, which would support Squamish’s ongoing involvement and participation in the proponent’s detailed Project planning, including the development of site-specific measures or pipeline routing to further avoid or mitigate adverse impacts on Aboriginal Interests, as well as the involvement of Squamish in emergency response planning activities. The federal Crown is considering incremental measures that would further accommodate the potential adverse impacts of the Project on Squamish, as discussed in Sections 4 and 5 of the main body of this Report.

3 Trans Mountain Final Argument, p. 85 and 207

ANNEX D

ANNEX E