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A52189) (A52189) (A52189 (A52189) (A52189) (A52189) (A52189) 1 3.1. THE CROWN’S DUTY TO CONSULT ...................................................................... 7 3.2. NO DIRECT CROWN CONSULTATION WITH HEILTSUK ......................................... 10 3.3. CROWN CANNOT GATHER SUFFICIENT INFORMATION IN PHASE IV .................... 10 3.4. NORTHERN GATEWAY HAS NOT FULFILLED ITS PROCEDURAL CONSULTATION OBLIGATION WITH HEILTSUK ......................................................................................... 12 3.5. THE JRP PROCESS IS NOT ADEQUATE CONSULTATION ....................................... 13 3.6. CONSULTATION IS A DIALOGUE .......................................................................... 18 3.7. INAPPROPRIATE FORUM ..................................................................................... 22 3.8. THE SOLUTION IS TO CONSULT ........................................................................... 25 1.0 Introduction 1. The Enbridge Northern Gateway Project (the “Project”) violates Heiltsuk Nation’s Gvi’ilas: We, the undersigned, who represent the Heiltsuk Nation as: Hereditary Chiefs, Council of the Heiltsuk Nation, members of our proud Nation, do commit to work cooperatively as a Nation to protect and enhance the well being of the Heiltsuk Nation and our people. In doing so, we so declare that: We will protect Heiltsuk Title and Rights to the Territories and seas of the Heiltsuk Nation; That we, the Heiltsuk First Nation, have a relationship with our land and seas that goes back to time immemorial, and this determines our relationship with nature, our role as stewards of this land, and all forms of life and our sovereignty; (A52189) 2 The Heiltsuk First Nation, occupied North America as a sovereign Nation long before other people came to our shores; The Heiltsuk First Nation, have always made our own laws, institutions and jurisdiction, which reflects our cultures, values and languages; Our Gvi’las directs us to balance the health of the land and the needs of our people, ensuring there will always be plentiful resources. We have honoured and maintained our traditions since time immemorial and continue this covenant today by having developed a land use plan that will protect the resources that are vital to our survival and well-being. Our sovereignty enables us to enter into Treaty and other political accords with other Nations and our sovereignty has international stature and recognition through the UN Declaration of the Rights of Indigenous peoples. We affirm to the world that the citizens of the Heiltsuk Nation collectively hold Title to all of the lands, resources and seas in our Traditional Territory and we commit to go forward as one Nation for the benefit of all Heiltsuk and future generations of Heiltsuk to come; and Uphold our duty as stewards of this land since time immemorial to uphold Gvi’las, the laws of our ancestors, to protect our lands and seas for our children and future generations to come. We further affirm that the Heiltsuk Nation has inherent aboriginal rights and jurisdiction over our territories, our resources and our lives with the right to manage our territories including our lands and waters and the Heiltsuk Nation laws and customs define our responsibilities to protect our lands and waters; In doing so: We hereby speak in unity with all of the First Nations in BC in our opposition to the Northern Enbridge Gateway Project Enbridge and Crude Oil Tanker traffic that is proposed to travel in our territory without our free and prior informed consent. We declare that the Heiltsuk First Nation will not put our territories and waters at risk caused by the proposed Enbridge Northern Gateway pipeline and crude oil tanker traffic in our waters. The Heiltsuk Nation in upholding Gvi’las, the laws of our ancestors, today declare to the Crown and the world that we will not allow pipelines and oil tankers carrying Alberta’s Tar Sands Oil in our lands and waters and as a sovereign Nation we ban tanker traffic in our waters.1 1 D85-3-03- Heiltsuk Tribal Council`s Written Evidence, Appendix B. (A52189) 3 2.0 Heiltsuk Hemas 2. Heiltsuk Hemas are the hereditary chiefs of Heiltsuk Nation. Hemas are the traditional leaders of Heiltsuk Nation and guide Heiltsuk community members in upholding traditional laws and culture, and in sustaining and respecting the land and marine environment. Gvi’ilas 3. Hemas govern by Gvi’ilas, which are the laws passed down by Heiltsuk ancestors. Gvi’ilas are extensive and include laws stewarding resource use and environmental management.2 Gvi’ilas provide that the principal management standard for stewarding resources in Heiltsuk Territory is respect and reverence for the life it sustains .3 4. Harvesting sites are owned by Hemas who have the responsibility to ensure that the resources were sustained and that no one would starve. 4 5. Governed by Gvi’ilas, Hemas are charged with protecting the land, sea, people, and resources to make sure there is sufficient food for everybody.5 Gvi’ilas require that the lands and resources can support Heiltsuk people into the future.6 6. Following their Gvi’ilas, Heiltsuk peoples have managed their fisheries in a sustainable fashion which has allowed them to live off of marine resources for thousands of years.7 7. Gvi’ilas require that when a non-Heiltsuk person enters Heiltsuk territory, they must ask permission to do so.8 For example, when Rivers Inlet wished to pick seaweed in Heiltsuk territory at the bottom end of Calvert Island, they asked permission, which Heiltsuk Nation graciously provided .9 This protocol also applies within the Nation, community members must ask another community member, whose family’s territory included a particular area, for permission to make use of the territory.10 Violation of Gvi’ilas 2 D85-3-14- Heiltsuk Tribal Council`s Written Evidence, Appendix O, at adobe page 14. 3 D85-3-14- Heiltsuk Tribal Council`s Written Evidence, Appendix O, at adobe page 15. 4 International Reporting Inc. – OH-4-2011- Hearing April 3, 2012 Vol. 37 at para 27088, evidence of Ms. Pauline Waterfall. 5 International Reporting Inc. – OH-4-2011- Hearing April 5, 2012 Vol. 39 at para 28880, evidence of Ms. Carrie Humchitt. 6 International Reporting Inc. – OH-4-2011- Hearing April 5, 2012 Vol. 39 at para 28896, evidence of Ms. Carrie Humchitt. 7 International Reporting Inc. – OH-4-2011- Hearing April 5, 2012 Vol. 39 at para 29055, evidence of Chief Councillor Marilyn Slett,. 8 International Reporting Inc. – OH-4-2011- Hearing April 5, 2012 Vol. 39 at para 28847. 9 International Reporting Inc. – OH-4-2011- Hearing April 4, 2012 Vol. 38 at para 27548. 10 International Reporting Inc. – OH-4-2011- Hearing April 4, 2012 Vol. 38 at para 27590. (A52189) 4 8. Northern Gateway’s pipeline and tanker project fails to accord with Gvi’ilas, as it does not respect or revere the life of marine or land resources. Baseline Information 9. Monitoring the baselines of marine and land resources is a key component of effective stewardship and governs how Hemas manage resources. Chief Gary Housty testified that Heiltsuk monitor herring spawns at their outset in order to determine how much herring will return in the future. This monitoring practice sustains the commercial roe-on-kelp operation as well as traditional herring egg harvesting.11 Harvesting decisions are made after careful monitoring and assessment of what the herring stocks can maintain. A decision is not made in the absence of sufficient information. 10. Northern Gateway’s Application did not gather marine-life baseline data in the Open Water Area. As such, this Panel cannot know the key indicator species which are the most susceptible to a potential oil spill in the Open Water Area. 11. The complete failure to assess the biophysical environment in Heiltsuk territory, which could be impacted by an oil spill, contradicts Heiltsuk Gvi’ilas which require, prior to decision-making, a comprehensive understanding and respect of the impacts that human decisions have on the status of distinctive stocks of fish, habitats of marine life. Impact on Herring 12. The evidence provided regarding the impacts of oil on herring is inconsistent. Northern Gateway concluded that the impacts to herring following the Exxon Valdez Oil Spill (“EVOS”) were minimal.12 Fisheries and Oceans Canada (“DFO”), however, noted that spills in specific locations could impact an entire herring stock. 13 Dr. Robert Spies, an expert for Gitxaala Nation, noted that it would be incorrect to characterize the scientific community as having eliminated oil spills as a direct cause of the herring population crash .14 13. These contradictions indicate that there is insufficient evidence to assess the impact of EVOS on herring, and as such, a decision that allows that potential impact without further assessment is irresponsible stewardship and violates Heiltsuk Gvi’ilas. 14. Further, the potential for an adverse impact following an oil spill represents too significant of a risk. Dr. Vigers’ uncontested oral evidence indicates that, regarding herring, Northern Gateway’s toxicity-based approach risk assessment 11 International Reporting Inc. – OH-4-2011- Hearing April 4, 2012 Vol. 37 at para 27278. 12 B3-39- Application Vol. 8C, at adobe page 33. 13 E9-21-08- Federal Government Participants` Response to Information Request No 1 from Gitga’at First Nation, 4.1 at pages 43 and 44. 14 International Reporting Inc. – OH-4-2011- Hearing May 1, 2013 Vol. 175 at para 28287. (A52189) 5 in the event of an oil spill is inadequate. The approach is inadequate because while oil may have toxic properties, most of its impacts are the result of physical interactions.15 Dr. Vigers testified that spilled oil floats or gets entrained and slicks spread quickly to physically coat beaches, intertidal areas and everything else it comes in contact with. This includes herring spawn and spawn-on-kelp.16 Dr. Vigers provides the following helpful illustration: 11798. DR. VIGERS: Imagine, if you will, a sheen of oil as a sheet of Saran Wrap.
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