Orcinus Orca) in Canada

Hearing Order MH-052-2018 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 (“NEBA”), as amended 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. for a Certificate of Public Convenience and Necessity and other related approvals pursuant to Part III of NEBA for the Trans Mountain Expansion Project; AND IN THE MATTER OF the National Energy Board’s reconsideration of aspects of its Recommendation Report as directed by the Governor in Council through Order in Council P.C. 2018-1177 (the “Reconsideration”). AND IN THE MATTER OF the Application for Review of Tsleil-Waututh Nation (“TWN”) of November 16, 2018. AFFIDAVIT #2 OF MIRIAM BIRD I, Miriam Bird, legal assistant, of Port Coquitlam, in the Province of British Columbia, AFFIRM THAT: 1. I am a legal assistant with Gowling WLG (Canada) LLP (“Gowling WLG”) in Vancouver. Gowling WLG is counsel to TWN for the Reconsideration. 2. I make this affidavit in support of TWN’s reply filing in relation to its Application for Review, as directed by the Board on November 21, 2018, and for no other or improper purpose. 3. I have personal knowledge of the matters set out in this affidavit, except where I have obtained information from others, in which case I state the source of the information and specifically swear that I believe such information to be true. 4. On December 5, 2018, I visited the “Killer Whale Northeast Pacific southern resident population” Recovery Strategies page on the Species at Risk public registry, at <https://wildlife-species.canada.ca/species-risk- registry/document/default_e.cfm?documentID=1341>. 5. On that page, I observed that on today's date, December 5, 2018, Fisheries and Oceans Canada posted an official, amended version of the "Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus area) in Canada", available at < https ://wi Id life-species. canada. ca/species-risk-reg is try/virtual_ sara/files/p lans/Rs ResidentKi IlerWhale-v00-2018dec-Eng. pdf> (the "Amended Recovery Strategy"). 6. At page 48, the Amended Recovery Strategy says that the southern boundary of the critical habitat area for the Southern Resident Killer Whale "is formed by the Exclusive Economic Zone of Canada". At page 50, Figure 5 illustrates the critical habitat area. The Amended Recovery Strategy is attached as Exhibit "A". AFFIRMED BEFORE ME at the City of Vancouver, in the Province of British Columbia on December 5, 2018 Commissioner for Taking Affidavits MIRIANrBIRD , (or as the case may be) Keith Brown Gowling WLG (Canada) LLP Articled Student 550 Burrard Street - Suite 2300 Benta/1 5 - Vancouver, B. C. V6C 285 Telephone: 604-443-7652 2 This is Exhibit "A" referred to in Affidavit #2 of Miriam Bird affirmed before me at Vancouver, British Columbia, this 5th Day of December, 2018 Commissioner for Taking Affidavits within British Columbia Keith Brown Gowling WLG (Canada) LLP Articled Student 550 Burrard Street - Suite 2300 Benta/15- Vancouver, B.C. V6C 285 Telephone: 604-443-7652 3 Species at Risk Act Recovery Strategy Series Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada Killer Whale Photo: G. Ellis Original publication 2008 1st amendment 2011 2nd amendment 2018 4 Recovery Strategy for Northern and Southern Resident Killer Whales 2018 Recommended citation: Fisheries and Oceans Canada. 2018. Recovery Strategy for the Northern and Southern Resident Killer Whales (Orcinus orca) in Canada. Species at Risk Act Recovery Strategy Series, Fisheries & Oceans Canada, Ottawa, x + 84 pp. For copies of the recovery strategy, or for additional information on species at risk, including Committee on the Status of Endangered Wildlife in Canada (COSEWIC) Status Reports, residence descriptions, action plans, and other related recovery documents, please visit the SAR Public Registry. Cover illustration: Graeme Ellis, Fisheries & Oceans Canada Également disponible en français sous le titre : « Programme de rétablissement des épaulards résidents (Orcinus orca) du nord et du sud au Canada» © Her Majesty the Queen in Right of Canada, represented by the Minister of Fisheries & Oceans, 2018. All rights reserved. ISBN 978-0-660-28614-3 Catalogue no. En3-4/46-2018E-PDF Content (excluding the cover illustration) may be used without permission, with appropriate credit to the source. ii 5 Recovery Strategy for Northern and Southern Resident Killer Whales 2018 Preface The federal, provincial, and territorial government signatories under the Accord for the Protection of Species at Risk (1996) agreed to establish complementary legislation and programs that provide for effective protection of species at risk throughout Canada. Under the Species at Risk Act (S.C. 2002, c.29) (SARA), the federal competent ministers are responsible for the preparation of a recovery strategy for species listed as extirpated, endangered, or threatened and are required to report on progress five years after the publication of the final document on the Species at Risk Public Registry. The Minister of Fisheries and Oceans and the Minister responsible for the Parks Canada Agency are the competent ministers under SARA for the Northern and Southern Resident Killer Whale and have prepared this strategy, as per section 37 of SARA. In preparing this recovery strategy, the competent ministers have considered, as per section 38 of SARA, the commitment of the Government of Canada to conserving biological diversity and to the principle that, if there are threats of serious or irreversible damage to the listed species, cost-effective measures to prevent the reduction or loss of the species should not be postponed for a lack of full scientific certainty. To the extent possible, the recovery strategy has been prepared in cooperation with Environment and Climate Change Canada and the Province of British Columbia, as per section 39(1) of SARA. In addition, both populations are considered trans-boundary in United States waters. The U.S. National Oceanic and Atmospheric Administration also participated in its preparation. As stated in the preamble to SARA, success in the recovery of this species depends on the commitment and cooperation of many different constituencies that will be involved in implementing the directions set out in this strategy and will not be achieved by Fisheries and Oceans Canada, the Parks Canada Agency, or any other jurisdiction alone. The cost of conserving species at risk is shared amongst different constituencies. All Canadians are invited to join in supporting and implementing this strategy for the benefit of the Northern and Southern Resident Killer Whale and Canadian society as a whole. In addition to this recovery strategy, an action plan for the Northern and Southern Resident Killer Whales has been developed that provides information on recovery measures underway and to be taken by Fisheries and Oceans Canada, the Parks Canada Agency and other jurisdictions and organizations involved in the conservation of the species. Implementation of this strategy is subject to appropriations, priorities, and budgetary constraints of the participating jurisdictions and organizations. Multi-species action plans have also been developed by the Parks Canada Agency that include recovery measures for Northern and Southern Resident Killer Whales. Acknowledgements Fisheries and Oceans Canada wishes to thank the Resident Killer Whale Recovery Team (Appendix B) for its efforts in developing the 2008 recovery strategy for the Northern and Southern Resident Killer Whales in Canada. The Team members were generous in contributing their own time to the development of the proposed recovery strategy. The recovery strategy is based on an extensive literature review and on technical input from individual team members iii 6 Recovery Strategy for Northern and Southern Resident Killer Whales 2018 and from group discussions and was mostly written by Kathy Heise. The Recovery Team is grateful for the expert reviews provided by Dr. Volker Deecke of the University of British Columbia and Dr. Christophe Guinet, Centre d’Etudes Biologiques de Chize, France. The cover photo was provided by Graeme Ellis. Doug Sandilands (Vancouver Aquarium Marine Science Centre) provided Figure 1. The amendments in the 2011 recovery strategy were prepared by Fisheries and Oceans Canada. The 2018 amendment to the recovery strategy was prepared by Christie McMillan with input from Dr. John Ford, Dr. Sheila Thornton, Dr. Thomas Doniol- Valcroze, Dr. Lisa Jones, Heather Brekke, Karen Leslie, and Dr. Lance Barrett-Lennard. Robin Abernethy prepared Figures 4 and 5. iv 7 Recovery Strategy for Northern and Southern Resident Killer Whales 2018 Strategic environmental assessment statement A strategic environmental assessment (SEA) is conducted on all SARA recovery planning documents, in accordance with the Cabinet Directive on the Environmental Assessment of Policy, Plan and Program Proposals. The purpose of a SEA is to incorporate environmental considerations into the development of public policies, plans, and program proposals to support environmentally-sound decision making. Recovery planning is intended to benefit species at risk and biodiversity in general. However, it is recognized that strategies may also inadvertently lead to environmental effects beyond the intended benefits. The planning process based on national guidelines directly incorporates

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