(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. Take a piece large enough to cover your face, chop it up into 100 small pieces, approximately the number of toxicants in oil, and eat it and you might have some indigestion or not even notice the difference. However, place the uncut sheet of Saran Wrap firmly over your nose and mouth for about 10 or 15 minutes, and you'll probably die of suffocation.
11799. This is exactly what happens when herring eggs are exposed to oil slicks and entrained oil. Oxygen transferred from water to spawn is cut off and the eggs quickly suffocate in probably 1/400th of the time required to be killed using the TRV calculations.17
By limiting its analysis, Northern Gateway’s evidence fails to adequately assess the risk of an oil spill to herring. Allowing the potential for such an adverse impact on herring without fully assessing the risk contradicts Heiltsuk Gvi’ilas.
15. Aside from the failure to comply with Gvi’ilas, Northern Gateway has not provided a complete application within the language of subsection 52(1) of the National Energy Board Act18 (the “NEB Act”) as it has failed to provide information on the Project’s impact on marine and land resources. The Board should therefore not embark on drafting a report or making recommendations without sufficient information to complete Northern Gateway’s application.
Inadequate Spill Modelling
16. Spill modelling is critical to understanding the impact of oil spills and what is needed to respond to them. Northern Gateway only conducted six spill models, which Environment Canada explained was inadequate. There needed to be spill modelling conducted throughout the potentially affected areas which would include the Open Water Area. Further, the conclusions drawn by Northern Gateway in the spill modelling they conducted was not reliable, as the parameters set for the modelling produced unrealistic results. The details of this issue are set out in the submission of Heiltsuk Tribal Council.
15 International Reporting Inc. – OH-4-2011- Hearing July 27, 2012 Vol. 64 at para 11797. 16 International Reporting Inc. – OH-4-2011- Hearing July 27, 2012 Vol. 64 at para 11797. 17 International Reporting Inc. – OH-4-2011- Hearing July 27, 2012 Vol. 64. 18 National Energy Board Act, RSC 1985, c N-7. (A52189) 6
17. Without adequate spill modelling information, Northern Gateway is in contravention of Gvi’ilas, as there is simply not enough information to make a stewardship decision. There needs to be reliable and complete information.
Inadequate information on bitumen/condensate fate
18. Understanding how bitumen/condensate will behave when it spills into water or comes into contact with an animal or plant is key to understanding whether there are adverse impacts which cannot be justified. Northern Gateway has insisted that bitumen/condensate floats and therefore is easily recovered from the surface of the water. This evidence, however, is inconsistent with the preponderance of other evidence. Both the Government of Canada and experts for the other intervenors have given evidence that either bitumen/condensate does sink, or there is insufficient testing to determine whether bitumen/condensate will sink.
19. Respect for marine resources in Gvi’ilas would require more information about how oil would move if there were to be a spill and the impact on marine animals, before a decision should be made on allowing the Project.
Inadequate information on response time in the Open Water Area
20. The impact of an oil spill cannot be assessed without considering the time it takes for emergency assistance to respond. Northern Gateway does not provide reliable information about the time it takes to respond to an oil spill in the Open Water Area, or the location and content of spill centres from which emergency vehicles will be responding to an oil spill. Without information that is accurate, there can be no assessment the mitigating measures of a response process.
21. Decision making by Gvi’ilas would require credible response times be assessed before any consideration of allowing tankers to put marine resources at risk.
Insufficient Geographic Response Plans for the Open Water Area, and insufficient information about the Fisheries Liaison Committee
22. Respect for those who bear the potential impact of an oil spill calls for a committed and detailed plan to address sensitive cultural sites (the Geographic Response Plans) and to manage priorities and differences that may arise from competing interests (Fisheries Liaison Committee). Northern Gateway has not provided enough information about either proposed groups, how they might function, how they may be funded, and how they deal with conflicting priorities. Instead, Northern Gateway has declined to develop these two groups until after it obtains its desired order to proceed with the project.
23. The Gvi’ilas teach that there be respect for all life. Northern Gateway does not respect First Nations or their rights when it fails to establish transparent and clear processes to protect the rights and interests of First Nations. (A52189) 7
3.0 Crown’s Failure to Consult
24. The Crown has failed to consult with Heiltsuk Nation.
3.1. The Crown’s Duty to Consult
25. Section 35 of the Constitution Act, 1982 recognizes and affirms existing Aboriginal rights in Canada. In R v. Sparrow, [1990] 1 S.C.R. 1075 at para 62, the Supreme Court of Canada recognized that the Crown owes aboriginal peoples a fiduciary duty when dealing with Aboriginal rights and that, in this context, “federal power must be reconciled with federal duty”.
26. The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples: Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511 at para 16 [Haida].
27. The Supreme Court of Canada has also recognized that the fiduciary relationship between the Crown and Aboriginal peoples demands that aboriginal interests be placed first. The duty to consult and accommodate is a means of upholding the honour of the Crown in the interim period between the assertion of aboriginal rights and the final determination of those rights: Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 [Delgamuukw].
28. Where the Crown has real or constructive knowledge of an asserted aboriginal right, and contemplates actions that could affect that right, the Crown is subject to consult with and, if necessary, accommodate the interests of affected First Nations: Haida.
29. The degree of consultation required in a given situation depends on the prima facie strength of the First Nation’s claim to its asserted Aboriginal right, and the potential risk of infringement of that right due to the Crown’s considered action. Where the prima facie strength of the claim is weak, and the risk of infringement is low, the duty to consult may consist only of providing the First Nation of the impending action, and information relating to the action. Conversely, where the prima facie claim is strong, and the potential for adverse effects is high, “deep consultation, with the aim of finding a satisfactory interim solution, may be required.” While “precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision”: Haida at para 44.
30. It is not sufficient for the Crown to take unilateral action, even when the action includes some intended accommodation of First Nations’ interests. The Crown’s duty to consult imposes on it a positive obligation to ensure that First Nations’ representations are seriously considered and, wherever possible, demonstrably (A52189) 8
integrated into the proposed plan of action: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] 3 S.C.R. 388 at para 64 [Mikisew].
31. The duty to consult is a legal obligation that is Constitutional in origin. Therefore, statutory decision makers are not limited by their statutory mandate in discharging the duty to consult: see West Moberly First Nations v. British Columbia (Ministry of Energy, Mines and Petroleum Resources), [2011] B.C.J. No. 942 (C.A.) at para 106; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103 at para 48; Halfway River First Nation v. British Columbia, 1999 BCCA 470, 64 B.C.L.R. (3d) 206 at para 177.
32. The scope and content of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed: Haida at para 39.
33. Citing T. Isaac and A. Knox, “The Crown’s Duty to Consult Aboriginal People” (2003), 41 Alta. L. Rev. 49, at p. 61, the Court in Haida noted that “’[c]onsultation’ in its least technical definition is talking together for mutual understanding”: at para 43.
34. When the consultation process suggests amendment of Crown policy, the stage of accommodation is reached. Thus, good faith consultation may reveal a duty to accommodate: Haida at para 47.
35. Accommodation refers to adjustment or adaptation to suit a special or different purpose. Accommodation that may result from consultation involves an attempt to harmonize conflicting interests and move further down the path of reconciliation. Balance and compromise are inherent in the notion of reconciliation: Haida at paras 49 and 50.
36. Even where the Crown’s consultation duty lies at the lower end of the spectrum, the Crown is expected at the very least, to respond to the concerns of the First Nation, and meet with the First Nation to ensure their concerns were addressed early in the planning stages of the process: Mikisew, affirming the trial judge’s findings, at paragraph 67.
Guidelines on the Duty to Consult
37. The Government of Canada created a document for federal officials to follow in order to fulfil their duty to consult, titled “Aboriginal Consultation and Accommodation” (the “Guidelines”). The Guidelines include Guiding Principles and Consultation Directives designed to guide federal officials in their efforts to address the duty to consult and, where appropriate, accommodate.19
19 E9-6-07- Updated Guidelines, at page 14. (A52189) 9
38. The Guiding Principles set out the broad Crown obligation, and the Consultation Directives speak to the purpose of the obligation and provide a framework in how to satisfy the obligation set out in the Guiding Principles.
39. Guiding Principle Number 4 requires that consultations must be carried out:
... in a manner that seeks to balance Aboriginal interests with other societal interests, relationships and positive outcomes for all partners. A meaningful consultation process is one which is:
carried out in a timely, efficient and responsive manner;
transparent and predictable;
accessible, reasonable, flexible and fair;
founded in the principles of good faith, respect and reciprocal responsibility;
respectful of the uniqueness of First Nation, Métis and Inuit communities; and,
includes accommodation (e.g. changing of timelines, project parameters), where appropriate. 20
The Consultation Directive associated with Guiding Principle Number 4 requires that a meaningful consultation process is characterized by good faith and an attempt by parties to understand each other’s concern, and move to address them. Further, federal officials must move towards a consultation approach that facilitates the inclusion of Aboriginal perspectives.
40. Guiding Principle Number 6 sets out that the Government of Canada will use and rely on, where appropriate, existing consultation mechanisms, processes and expertise, such as environmental assessment and regulatory approval processes in which Aboriginal consultation will be integrated, to coordinate decision making and to assess whether additional consultation activities may be necessary. The Consultation Directive supplements Guiding Principle Number 6, noting that in order to use existing processes, the existing processes must allow for appropriate, meaningful consultation.21
41. The final guideline, Guiding Principle Number 8, provides that the “Government of Canada will seek opportunities to develop and maintain a meaningful dialogue with Aboriginal groups in support of building relationships with its partners”, this
20 E9-6-07- Updated Guidelines, at page 14. 21 E9-6-07- Updated Guidelines, at page 15. (A52189) 10
is consistent with the Consultation Directive which notes that federal officials should seek to develop positive, long-term relationships with Aboriginal groups.22
3.2. No direct Crown consultation with Heiltsuk
42. The Crown has not consulted with Heiltsuk Nation. In October of 2008, and January of 2009, Mr. Brett Maracle, the Crown Consultation Coordinator, distributed letters to potentially impacted First Nations regarding the Project Application and invited these First Nations to comment on the Proposed Joint Review Panel Agreement, as well as to establish meetings with the Agency regarding the Agreement. Heiltsuk was not included in this correspondence.
43. When asked in cross examination whether the Crown has engaged in consultations with Heiltsuk, Mr. Stinson O’Gorman noted that the Crown had “many meetings with Aboriginal groups” to explain that the Crown would be using the consultation by the Proponent and the JRP process to deliver the Crown’s consultation process for the Project.23 A meeting explaining that the Crown is using the JRP process is not consultation. Furthermore, during cross examination, Mr. Stinson O’Gorman testified that the Crown had not filed in evidence its consultation record.24 Heiltsuk Nation has not received any record regarding the Crown’s consultation. Failing to provide this information suggests a closed process.
44. Heiltsuk Nation notes that federal officials have met with Heiltsuk on two occasions regarding the Project, once in November 2010 and again in August 2011. These meetings do not constitute consultation as they were both brief and did not involve any comprehensive discussion of the Project or its impacts on Heiltsuk. Heiltsuk leadership note that during the meetings, they made it clear that these meetings were considered by the Nation as informational, and not consultation.
3.3. Crown cannot gather sufficient information in Phase IV
45. During cross examination, witnesses for the federal government took the position that during Phase IV of the consultation/hearing process, it will establish meetings with government officials and impacted First Nations, if necessary, to ensure the Crown appropriately discharges its duty to consult.25 Phase IV of the consultation process will be completed within a six-month time frame.26 During this period, the Crown will conduct its strength of claim analysis to ensure it has adequately fulfilled its duty to consult on the Project.
22 E9-6-07- Updated Guidelines, at page 16. 23 International Reporting Inc. – OH-04-2011 Hearing April 30, 2013 Vol. 174 at para 27374. 24 International Reporting Inc. – OH-04-2011 Hearing April 30, 2013 Vol. 174 at para 27387. 25 International Reporting Inc. – OH-04-2011 Hearing April 30, 2013 Vol. 174 at para 26633. 26 International Reporting Inc. – OH-04-2011 Hearing April 30, 2013 Vol. 174 at para 27341. (A52189) 11
46. Relying on Phase IV to satisfy the Crown’s consultation obligations contradicts the established law and Guidelines on the duty to consult. Haida requires a preliminary assessment establishing the strength of the case supporting the existence of the right or title.27 Testimony from federal government participants indicates that establishing the strength of a case will occur during one of the final stages of the consultation process. As the strength of the case supporting the existence of rights or title is directly tied to the extent of the scope of the duty to consult, it is entirely contradictory to established law to assess the strength of the case in the final months of a process that has spanned several years
47. The Crown, in limiting its discussions with First Nations regarding their concerns about the Project impacts to a six-month period, is not consulting in a meaningful manner. Delgamuukw requires that the Crown must have the intention of substantially addressing Aboriginal concerns as they are raised.28 Phase IV provides a maximum of six months for all Aboriginal groups to review the JRP report, arrange meetings, and engage with the Crown regarding the Project and its impacts on their rights and title.
48. While witnesses for the federal government testified in cross-examination that how Phase IV unfolds will be established following receipt of the JRP report, they maintained that Aboriginal groups would have the opportunity to send a written submission regarding the JRP report and then would be able to, if necessary, meet with the Crown to consider the information in advance of the final Government decision regarding the Project.29 The Crown initially contacted 82 Aboriginal groups who it determined could be impacted by the Project, and 32 Aboriginal groups participated in the JRP process to some degree to date. Considering the number of potentially impacted Nations, the Crown cannot maintain a position that it can gather sufficient information from this number of Aboriginal groups within a six-month period in order to meaningfully consult with them.
49. At some point during Phase IV, the Crown asserts that it will also assess the strength of a case for each impacted Aboriginal group. Heiltsuk maintain that assessment of the strength of the case at the close of a consultation period that has spanned several years is inconsistent with Haida’s direction to make a preliminary assessment of the strength of a case.30 Nonetheless, a six-month time frame to carry out all remaining consultation activities is not sufficient for meaningful consultation.
27 Haida, at para 39. 28 Delgamuukw, at para 168. 29 International Reporting Inc. – OH-04-2011 Hearing April 30, 2013 Vol. 174 at paras 27270-27272. 30 Haida at para 39. (A52189) 12
3.4. Northern Gateway has not fulfilled its procedural consultation obligation with Heiltsuk
50. Haida sets out that while the Crown cannot delegate its duty to consult with First Nations, it may delegate procedural aspects of consultation to industry proponents seeking a particular development.31 For the Project, Northern Gateway was required to contact Aboriginal groups potentially impacted by the Project and to provide them with information about the Project and its potential impacts. Northern Gateway was also required to document the groups’ concerns, to accommodate those concerns in the project planning and initial design of the project, and to include information on unresolved concerns in its Application.32
51. Northern Gateway did not fulfil this obligation in respect of Heiltsuk Nation. For example, Northern Gateway did not provide Heiltsuk Nation with:
Notification of the NEB JRP Announcement; Notification of NEB Application Filing; Notification of NEB Application Filing with CD Copy; JRP Procedural Direction for the Project; Update to the Application, Volume 3(HDD Reports); or Update to the Application, Volume 6C Section 4.4 and TDRs).33
Likewise, Heiltsuk Nation has received extremely limited correspondence from Northern Gateway.34
52. In cross examination by Ms. Humchitt, Mr. Carruthers stated that with respect to part of the Northern Gateway application titled, “Aboriginal Groups Engaged by Northern Gateway”, that Heiltsuk Nation was incorporated through the Turning Point Initiative.35 Additionally, funding was provided to Turning Point to consider traditional uses by coastal First Nations.36
53. Northern Gateway appears to substantially rely on its consultation with the Turning Point initiative and Coastal First Nations regarding potential environmental issues related to the project.37 While the Northern Gateway’s Application notes that other Nations, such as Kitasoo/Xaixais, advised Northern Gateway that their interests would be represented through the Turning Point initiative,38 Heiltsuk were not given the opportunity to select their preferred method of participation. Northern Gateway cannot fulfill its obligations to
31 Haida at para 53. 32 E9-6-08- Approach to Crown Consultation, page 1. 33 B24-2 – Update to Application Vol. 5A, at adobe page 24. 34 B24-2 – Update to Application Vol. 5A, at adobe page 31. 35 International Reporting Inc. – OH-4-2011 Hearing December 15, 2012 Vol 116. 36 International Reporting Inc. – OH-4-2011 Hearing December 15, 2012 Vol. 153 at para 16608. 37 B2-26- Application Vol. 5A, at page 203. 38 B2-26- Application Vol. 5A, at page 199. (A52189) 13
Heiltsuk Nation through consultation with separate organizations without the express permission of Heiltsuk Nation. Northern Gateway has not discharged its procedural consultation obligations with Heiltsuk Nation.
54. Consultation requires that the Crown engage with the proper rights holder, this is the group who shares language, customs, traditions, historical experience, territory and resources at the time of first contact and at sovereignty assertion: Tsilhqot’in Nation v. British Columbia, 2007 BCSC 1700, [2008] 1 CNLR 112 at para 470. While other coastal First Nations share similarities to the Heiltsuk Nation with respect to their customs and traditions, the Crown cannot discharge its duty to consult without appropriate consultation of all nations impacted.
55. When a meeting between Northern Gateway and Heiltsuk did occur, Heiltsuk’s concerns were not adequately addressed by Northern Gateway. On November 3, 2010, the Heiltsuk Tribal Council invited Northern Gateway to the Heiltsuk community to discuss concerns regarding the project and to advise Northern Gateway of Heiltsuk’s opposition to the project. Chief Marilyn Slett testified that Northern Gateway’s Aboriginal Consultation and Regulatory Compliance Manager asked what purpose the meeting had, giving regard to Heiltsuk’s position on the Project.39 While representatives for Northern Gateway attended the meeting, Chief Slett had doubts regarding whether the community’s concerns were heard, following the response from Northern Gateway’s Consultation Manager.40 In Northern Gateway’s Application Update, it listed the November 2010 meeting as having taken place but did not record Heiltsuk Nation’s unresolved concerns, such as the community’s enduring opposition to the Project and the reasons for this opposition.41
56. Though the duty to consult rests with the Crown, Northern Gateway is obligated to satisfy a substantial procedural consultation obligation, Northern Gateway has failed both to engage with the Heiltsuk on a meaningful level to assess the community’s concerns and to accurately record these concerns. Furthermore, Northern Gateway’s apparent misunderstanding of the appropriate group with which to engage in consultation affirms its failure to satisfy its consultation obligations.
57. Northern Gateway has misconstrued its obligations and has failed to properly fulfil its procedural duty to consult.
3.5. The JRP Process is not adequate consultation
58. Northern Gateway filed the Application for the Project on May 27, 2010. The Project proposes construction and operation of dual oil and condensate pipelines which span 1,170 kilometres in length running from Bruderheim, Alberta to
39 International Reporting Inc. – OH-4-2011 Hearing April 5,2012 Vol. 39, at para 29209. 40 International Reporting Inc. – OH-4-2011 Hearing April 5,2012 Vol. 39, at para 29209. 41 24-2 – Update to Application Vol. 5A, at adobe page 382. (A52189) 14
Kitimat, British Columbia. The pipelines will transport 525,000 barrels of diluted bitumen product through the export pipeline each day from Bruderheim to Kitimat, and will transport 193,000 barrels of condensate through the import pipeline from Kitimat to Bruderheim each day.42 Once the diluted bitumen product reaches the Kitimat terminal, it will be loaded onto tankers, which will transport the product to Asian markets.
59. The Joint Review Panel (the “JRP” or the “Panel”) was convened to conduct the environmental assessment regarding the Project. The JRP Process commenced in 2010, and we are currently in the third year of the process. In order to fully participate in the JRP process, persons were required to make an application for intervention. The JRP final hearings for cross-examination spanned 91 days over 9 months. The questioning phase of the hearings involved numerous witness panels who would address discrete areas of Northern Gateway’s Application. Each panel could include up to 30 witnesses, the majority of whom were experts, and which were supported by multiple lawyers.
60. For a project of this scale and impact, the JRP process is not adequate consultation. In an apparent attempt to soften the impact of the Crown’s failure to conduct a preliminary strength of claim analysis, Mr. Stinson O’Gorman for the Government of Canada, testified that all First Nations that might be impacted by the Project will be “consulted at the deep, high level of consultation by making use of the JRP – you know, the consultation activities of the Proponent and the JRP process itself to – which is it provides for that meaningful, deep consultation”.43
61. Hemas assert that the JRP process is not consultation. This is evident in the Panel’s unilateral truncation of Heiltsuk hearings for oral evidence in April 2012, and the following rescheduling of a one-day hearing in July, 2012 outside of the Heiltsuk community.44 The July 2012 hearing was not held in an appropriate venue to collect the oral evidence as the location was inaccessible to some community members and was not selected in collaboration with the community. Contrary to Mr. Stinson O’Gorman’s assertions, the JRP process is incapable of providing deep and meaningful consultation.
Funding Issues
62. The lack of funding to participate in the process has severely restricted the opportunity for Aboriginal groups to access the “meaningful” consultation that is required by the Crown.
42 See News Release, Joint Review Panel Begins Assessment of Recently Filed Northern Gateway Pipeline Application, online: < http://www.ceaa-acee.gc.ca/050/document-eng.cfm?document=43411>. 43 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174, at para 26851 44 Exhibit A139-1; Exhibit A176-1. (A52189) 15
63. Funding requests to assist Aboriginal groups in the pre-hearing and hearing phases of the JRP process totalled $17,150,195.98. However, the Agency allocated only $2,385,000 to Aboriginal groups for these activities.45 Both Coastal First Nations and Haisla Nation corresponded with the JRP and the Canadian Environmental Assessment Agency regarding the inadequacy of funding to participate in the process.46
64. With respect to Coastal First Nations, on August 14, 2012, Mr. Art Sterritt wrote to the Secretary to the Joint Review Panel, and noted that, amongst other procedural flaws, without adequate funding, the member First Nations of Coastal First Nations and Coastal First Nations are not able to meaningfully engage in the issues before the JRP and will not be meaningfully consulted by the Federal Crown prior to the statutory decisions are made in relation to the proposed project.47
65. On February 4, 2013, Mr. Sterritt noted that due to inadequacies in funding of Coastal First Nations, the organization would be limited in its ability to participate any further in the process.48 Mr. Sterritt also reported that CFN was provided with a maximum of $25,000 to use for legal funding through the process .49 Coastal First Nations did not cross examine any witness panels following December 2012.
66. With respect to Haisla Nation, in a letter dated June 3, 2010, Kitimat Village Council noted that the funding provided to the Haisla Nation to participate in the project was inadequate. Further it noted that the funding allocation would prohibit the Haisla Nation from using more than $30,000 of the funds provided on legal representation.50 Haisla Nation noted again in a letter dated August 10, 2010, that the Haisla Nation was only provided with 18% of its requested funding, and that the available budget allocated for funding participation in the review is “wholly inadequate.”51
67. The JRP process is an inherently legal process, which involves the questioning of expert panels to extract information and control of access to information by way of interrogatories and objections. Despite being an inherently legal process, Aboriginal parties who sought funding to participate in the process have had the little monies allocated to them for the purposes of participation in the process additionally limited through terms and conditions mandating how the monies can be spent.
68. Indeed, during cross examination, on April 30, 2013 Mr. Stinson O’Gorman testified:
45 E9-6-03- Government of Canada Consultation Written Evidence, at page 6. 46 International Reporting Inc. – OH-4-2011 Hearing February 4, 2013 Vol. 133 at para 21; Exhibit C156-1. 47 D35-26-1- Coastal First Nations Letter, at page 2. 48 International Reporting Inc. – OH-4-2011 Hearing February 4, 2013 Vol. 133 at para 21 49 International Reporting Inc. – OH-4-2011 Hearing February 4, 2013 Vol. 133 at para 23. 50 C157-1, Haisla Nation Letter of Comment, page 4. 51 C157-1, Haisla Nation Letter of Comment, page 4. (A52189) 16
27003. MR. DEAN STINSON O'GORMAN: Madam Chair, once again, the Participant Funding Program is designed to support participation by Aboriginal groups or the public in environmental assessment processes in general.
27004. It has governed by terms and conditions of what the money -- that are established by Treasury Board in terms of what the monies can be spent on. It’s not meant to cover all of the expenses of any group in participating in the JRP process and it -- the question about whether or not there are limits on the amount that can be spent on legal representation, I would suggest, aren’t really germane to the ability of a group to participate in the process.52
69. Mr. Stinson O’Gorman’s testimony indicates a failure to understand the requirement to be represented by legal counsel in order to meaningfully engage in the process. In a letter dated June 30, 2010, Dolores Pollard, the Chief Councillor for Kitimat Village Council (Haisla Nation), highlighted the inherent flaws with Mr. Stinson O’Gorman’s position:
The funding allocation proposed appears to be strategically designed to prevent us from advancing our evidence of aboriginal rights and title as required by your process. On the one hand, the federal government is deferring to a quasi-judicial process for the gathering of information and partial consultation and accommodation. On the other hand, the federal government is intentionally crippling our ability to participate in this quasi-judicial process by failing to provide adequate funding for meaningful participation Canada’s proposed funding allocation would prohibit us from using more than $30,000 of the funds provided on legal representation. Will Canada limit its spending on legal matters to $30,000? Will Enbridge? Will the National Energy Board? It is fundamentally unacceptable for Canada to offer us only a fraction of the funding that we need to participate effectively in the JRP process. It is unbelievable that Canada would propose to tie our hands as to how we use these funds so as to prevent us from having lawyers represent our interests...53
70. Mr. Terence Hubbard, another witness for the federal government consultation panel, noted that there is no requirement for legal counsel to participate in the JRP process.54 While partial participation in the JRP process may be possible without legal counsel, full intervenor participation requires legal support to allow the group to adequately respond to the application, test the evidence, and make submission regarding its rights and title.
52 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174.
53 C157-1, Haisla Nation Letter of Comment, page 4. 54 International Reporting Inc. – OH-4-2011 Hearing Jan. 27, 2012 Vol. 17 at 27005. (A52189) 17
71. A review of the JRP registry and the number of First Nations involved in the JRP process demonstrates that the JRP process, for this Project, is an inadequate mechanism to use for gathering information regarding Aboriginal rights.
72. The federal government’s written evidence noted that Canadian Environmental Assessment Agency and National Energy Board officials contacted 82 Aboriginal Groups who were identified as being potentially impacted by the proposed project.55 The JRP registry shows that 38 First Nations groups registered in the JRP process in as intervenors. Of the 38, only 32 First Nations groups participated in any capacity as intervenors, and of these 32, only 12 First Nations cross examined witness panels.
73. When asked whether these low numbers were concerning, Mr. Stinson O’Gorman continually evaded the question. This is apparent from the course of the cross- examination.56 As one typical response throughout the cross-examination, he testified that Aboriginal peoples can convey their views on the Project to the JRP by various means, including oral statements, letters of comment or by participation as intervenors.57
74. When asked if Canada was aware that a JRP process incorporating a lengthy hearing would result in limiting First Nations participation, Mr. Stinson O’Gorman again evaded the question. He responded that the JRP process met Canada’s legal duty to consult and cited the processes excellence and transparency.58 When asked if Canada had any concerns about the hearing components being a limitation to First Nations to provide information, Mr. Stinson O’Gorman repeated that the JRP process met Canada’s legal duty to consult and cited the process’s excellence and transparency.59 Mr. Stinson O’Gorman gave the same answer in response to being asked if Canada had any concerns about the First Nations being limited in their participation due to not being able to afford to submit expert evidence.60
75. When asked if Canada would be assessing why there has been such a small number of First Nations involved, Mr. Stinson O’Gorman continued to be non- responsive by answering that Canada cannot force First Nations to participate.61 He gave a similar answer in response to the question whether Canada had considered that there might be a lesser number of First Nations participating due to the small amount of funding available.62
55 E9-6-03 – Government of Canada – Volume 1 Part 2 Government of Canada Consultation Written Evidence at page 4. 56 See e.g. International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27191. 57 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27194. 58 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27123-27124. 59 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27131-27137. 60 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27148-27149. 61 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27249-27250. 62 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at 27251-27253. (A52189) 18
76. Mr. Stinson’O Gorman’s responses reflect a misunderstanding of Haida and the Crown’s Guidelines which require that consultation be a meaningful dialogue.
77. The Guidelines require that consultation is accessible, and that consultation flexible and fair. In order to fairly engage in the process, parties required legal and expert report. This was not provided. Likewise, a written intervention does not invite a response, nor does an oral presentation. Mr. Stinson O’Gorman, in characterizing these activities as a means to participate in the process, misunderstands what consultation is, as adopted in Haida, consultation means “talking together for mutual understanding.” An oral presentation or written intervention which does not receive any response does not capture this sentiment.
3.6. Consultation is a dialogue
78. Consultation is a part of the reconciliation process and requires meaningful dialogue between the Crown and Aboriginal peoples. The Guidelines require that consultation include development and maintenance of meaningful dialogue. Haida explores the concept of meaningful consultation, noting that meaningful consultation involves not just the exchange of information, but can also oblige the Crown to make changes to its proposed action based on information exchanged in consultations: para 46. The requirement of dialogue is implicit in this statement, Haida suggests multiple consultations which include exchanges of information but also testing of information, providing feedback, and adapting the process based on the consultations.
79. In order for there to be a meaningful dialogue, impacted First Nations should have the opportunity to contribute to the design of the process. However, First Nations have not had meaningful opportunities to be involved in developing the process for the review of the Project. Many First Nations groups have made their concerns about this lack of opportunities known. In response to the draft Joint Review Panel Agreement, prior to the commencement of oral hearings, Haisla Nation noted concerns regarding the lack of First Nation involvement in the design of the regulatory and environmental review process for the Project. In response, the Crown noted that it is “open to discussing how consultation, within the framework provided, will be carried out.”63 Several other First Nations commented on the lack of consultation in developing the JRP framework.64
80. Nadleh Whut’en First Nation’s comments regarding the Nation’s involvement in developing the consultation process are revealing. The Nation Stated:
63 E9-6-09 – Government of Canada – Volume 1 Part 8 Annex 6 Response to Comments on the Draft JRPA at page 22. 64 E9-6-09 – Government of Canada – Volume 1 Part 8 Annex 6 Response to Comments on the Draft JRPA Samson Cree First Nation, page 23; Nak’azdi Band Council, page 35; Wet’suwet’en, page 41; Nadleh Whut’en First Nation, page 56. (A52189) 19
Nadleh Whut’en is in receipt of the Feb 2009 document entitled “Approach to Crown Consultation for the Northern Gateway Project.” This document was unilaterally developed and it does not appear that it incorporates any of the comments made to date by Nadleh Whut’en, or any other FNs. Moreover, the document was appended to a letter announcing the ‘public comment period’ for the JRPA, which has a deadline of April 14 2009. While comments have been welcomed on the JRPA, there has been no similar request for comments, meetings, or input on the Consultation document. It appears that the Crown is not willing to modify this document or approach.65
81. Nadleh Whut’en received the same stock response as Gitxaala, that the Crown is open to discussing how consultation, within the framework provided, will be carried out. The response does not address Nadleh Whut’en’s apparent concerns that the Crown’s approach to the Consultation was developed without any apparent regard to Nadleh Whut’en’s concerns. The Crown’s failure to respond to First Nations’ concerns regarding their involvement in developing the process represents a failure to satisfy the duty to consult even at the low end of the spectrum as required by Mikisew at paragraph 67.
82. When Gitxaala Nation expressed their concerns that the CEAA/NEB JRP process is not the appropriate vehicle for consultation with the Gitxaala Nation, the Crown responded that it “welcomes further discussion with the Gitxaala Nation in regard to [its] concerns about the federal review and consultation process”. This was followed by the statement that “[t]he JRP process will be the primary vehicle through which the concerns of the Gitxaala Nation regarding project-related impacts on its rights can be heard.”66 While the Crown’s initial response states it welcomes further discussions, the following response indicates the discussion will have little meaning, as the Crown has already determined the process. Northern Gateway’s failure to consider these requests is not flexible, or responsive, as required by the Guidelines.
83. The JRP process is a quasi judicial process, which utilizes affidavit evidence, cross examination of evidence, interrogatories, objections and applications. The nature of the process restricts the free flow of information. To illustrate:
a. During the hearings for oral evidence, the Heiltsuk peoples were restricted in expressing their opinion of the project, for example, on April 5, 2012, Mr. Alvin Dixon had an exchange with the chairperson, as he expressed
65 E9-6-09 – Government of Canada – Volume 1 Part 8 Annex 6 Response to Comments on the Draft JRPA at page 56.
66 E9-6-09 – Government of Canada – Volume 1 Part 8 Annex 6 Response to Comments on the Draft JRPA at page 51. (A52189) 20
his opinion of Harper ‘fast-tracking’ the construction of the pipeline, and was told to stop: 28979. MR. ALVIN DIXON: Okay then. I think -- except to say that I support everything that the Heiltsuk people have expressed to you in their fears with respect to -- to the loss and potential loss of the access and the resource.
28980. And much of what I had to say, I know you will cut me off, so I don't --I'm not used to being limited in what I want to say, so I'm going to stop here. I think this is a futile exercise.67
b. Again, on April 5, 2012, Chief Marilyn Slett was cut off by the panel when providing evidence regarding Heiltsuk conflicts with the sports fishing industry in Heiltsuk traditional territory. The panel was advised Heiltsuk consider the impact of the sports fishers as historical impact on their environment, and that this has bearing on their perception of the project.68 The panel asked her to refocus her comments to the proposed project. Chief Slett described that the overfishing affected the herring fisheries, and all fisheries in Heiltsuk’s traditional territories, she likened the impact of the community fisheries to the potential impact of Enbridge in Heiltsuk’s traditional territory, but was told by the panel to move on to her next point.69
c. When intervenors asked questions regarding the ability of the Department and Fisheries and Oceans to effectively fulfil its monitoring commitments in light of highly publicized staffing cuts, counsel for the federal government participants objected on the grounds of relevance.70 The federal government witness panel did not describe how they would meet these commitments.
84. Furthermore, consistent with the quasi-judicial process, witnesses who filed written evidence were required to file affidavits adopting their written evidence. Gitxaala Nation filed a Motion with the JRP panel on March 27, 2013 regarding the affidavit evidence procedural direction, and noted that with respect to some of Gitxaala’s filed evidence, the ability to prove the authenticity of the documents is out of Gitxaala’s control. Particularly, Gitxaala could not verify documents received through information requests to federal and provincial government departments, documents received from government department websites, and copies of Hansard debates. The documents have relevance to the JRP process as they relate to the status of the west coast tanker moratorium. Gitxaala requested exemption from the affidavit requirement for these documents, or for the authors
67 International Reporting Inc. – OH-4-2011 Hearing Transcript April 5, 2012 – Vol. 39.
68 International Reporting Inc. – OH-4-2011 Hearing Transcript April 5, 2012 – Vol. 39 at 29101-29113. 69 International Reporting Inc. – OH-4-2011 Hearing Transcript April 5, 2012 – Vol. 39 at 29130-29139. 70 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2013 – Vol. 168. (A52189) 21
of the letters attaching the Access to Information Requests be summoned by the Panel to confirm their authenticity.71
85. Notably, both the federal government and Northern Gateway filed comments on the Motion requesting that the Panel deny Gitxaala the exception from the affidavit requirement. While the federal government response to the Motion noted in its reasons supporting the denial of the exemption that Gitxaala’s Motion demonstrated a too restrictive reading of the Panel’s direction of affidavits, the fact remains that the federal government attempted to interfere with Gitxaala’s attempt to ensure adequate weight was given to documents of importance to Gitxaala.
86. Notably, the JRP Panel dismissed the motion, requiring Gitxaala to address the weight that should be given to the documents in final argument. The requirement to file a motion to seek direction on the sharing of information, and ensuing letters filed with the Panel attempting to restrict such sharing, is a testament that this, complicated process, is not consultation.
87. In a meaningful consultation process, a primary purpose is the exchange of information. The JRP process necessarily impedes the appropriate transmission of information. To illustrate, none of the members of the federal government consultation panel had any involvement in reviewing the record or in the ongoing assessment of strength of claim, so this information was not provided to the interested parties.72 In a true dialogue designed with reconciliation in mind, surely a party seeking information relevant to the process would have the opportunity to speak with the individuals who possessed that information.
88. A final example of the failure to have a free exchange of information is the JRP requirement that impacted groups file applications to question government witnesses. Groups were required to submit applications to question federal government participants. Five First Nations who submitted such requests were denied the opportunity to question the federal government participants.73 The federal government participants filed invaluable scientific evidence, evidence on the regulatory scheme, and evidence regarding their consultation obligations and approach. Gaining information is a foundational component of consultation. It is self-evident that the First Nations who submitted the requests to question the federal government participants did so because they wished to gain full information regarding federal government’s evidence. One would expect that in a true consultation process, if a First Nation wished to obtain information, they would be provided with the opportunity. This was not the case here.
71 A354-1 Panel Commision – Ruling No. 161 – Motion Filed by Gitxaala Nation Dated 27 March 2013. 72 International Reporting Inc. – OH-4-2011 Hearing Transcript April 30, 2013 – Vol. 174 at 26656. 73 A239-1 – Panel Commission – Ruling on Questioning of the Federal Government Participants. (A52189) 22
3.7. Inappropriate Forum
89. In some instances, the Crown can satisfy its duty to consult through incorporation of its consultation duties into the environmental assessment process. For a project of this size and scope, with the risks of harm to land and water, the environmental assessment is not the appropriate forum to discharge the bulk of the Crown’s consultation obligations. The circumstances in which an environmental assessment has been deemed the appropriate forum for consultation are clearly distinguishable from this project and process.
90. In Taku River Tlingit v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 SCR 550, Taku River Tlingit First Nation (“TRTFN”) sought to quash the Ministers’ decision under the Environmental Assessment Act, RSBC 1996, c 119 to approve a proposed 160 kilometre road through a portion of TRTFN traditional territory on the basis that the province failed to meet its duty to consult and accommodate TRTFN. The environmental review process was carried out over three years. The Tlingit participated in the process as a member of the Project Committee, which is the primary engine driving the assessment process. When the Committee submitted a Recommendations Report to the Ministers, the Tlingit, having disagreed with the majority of the Committee, submitted an additional minority report stating their concerns with the process and the proposal. The Supreme Court of Canada held that the process mandated by the Canadian Environmental Assessment Act, SC 1992, c 37 fulfilled the requirements of the Crown’s duty to consult and accommodate as the Tlingit were part of the Project Committee, participating fully in the environmental review process. In addition to the discussion in the minority report of TRTFN concerns, the majority report thoroughly identified the TRTFN’s concerns and recommended mitigation strategies, which were adopted into the terms and conditions of certification. These mitigation strategies included further directions to develop baseline information, and recommendations regarding future management and closure of the road. Thus, while the consultation engaged in by the Province was found to be adequate, the involvement of the TRTFN in the environmental assessment vastly exceeded the involvement of Heiltsuk in the current environmental assessment process. Further, the proposed project involved the construction of a 160 kilometre road and cannot be compared to the scale and impact of the Northern Gateway project.
91. In Conseil des innus de Ekuanitshit c. Canada (Procureur general), 2013 FC 418, the environmental assessment process was able to fulfill the duty to consult because the applicant was actively involved in the process, receiving over $66,000 in funding to present written submissions which informed the Joint Review Panel’s information request process, submitting comments on draft guidelines and the draft JRP agreement, and being invited to nominate JRP members. Further, this involvement began early in the process, at the planning stage. These opportunities for involvement have not been available to Heiltsuk Nation. Further, the JRP process in Ekuanitshit can be distinguished on the basis (A52189) 23
that the environmental assessment process involved only 30 days of public hearings carried out in 6 communities.
92. In Ka’a’Gee Tu First Nation v Canada (Attorney General), 2007 FC 763, 315 FTR 178 [Chicot 1], the Federal Court held that the consultation process provided for in an environmental is comprehensive and does give an opportunity for significant consultation between a developer and affected Aboriginal groups. The regulatory scheme in this case was complex, with involvement of the National Energy Board, the Canada Oil and Gas Operations Act, RSC 1985, c O-7, and the Canada Petroleum Resources Act, RSC 1985, c 26 (2nd Supp), as well as the Mackenzie Valley Resource Management Act, SC 1998, c 25. The Federal Court found that in relation to the environmental assessment, Ka’a’Gee Tu First Nation (“KGTN”) were heavily involved in the process and that the Environmental Assessment Report of the Review Board clearly showed that many of their concerns were taken into account. Until the Crown elected to avail itself of the “consult to modify process”, unilaterally altering the Review Board’s recommendations which were the result of the early consultative process, the process provided an opportunity for the Applicants to express their interests and concerns, and ensured that these concerns were seriously considered and, wherever possible, demonstrably integrated into the proposed plan of action.
93. Until the “consult to modify process” was used, the court was satisfied that Ka’a’Gee Tu First Nation benefited from formal participation in the decision- making process. However, the proposed project in Chicot 1, the Cameron Hills Extension Project, was substantially smaller in scope and impact than the proposed Northern Gateway pipeline. The proposed project was in addition to existing and approved activities on the site. The project was to include drilling, testing and tie-in of up to 50 additional wells over a period of 10 years; oil and gas production over a 15 to 20 year period; excavation of 733 km of seismic lines; construction of temporary camps servicing up to 200 workers; the withdrawal of water from lakes; and the disposal of drill waste. Thus, the proposed project took place over a smaller geographic area and involved significantly less construction. In addition, the proposed project did not have potential impacts on the ocean marine environment. The assessment involved a one-day pre-hearing conference, held on February 2, 2004, and two days of public hearings, held from February 18-19, 2004. There were a total of 8 First Nations groups involved, and 5 made presentations at the public hearing. These presentations ranged in length from 30 to 120 minutes, with a question and answer period. Thus, while there was adequate consultation through the environmental assessment, this cannot be analogized to the amount of consultation required for a large project with the potential of significant adverse impacts like the Northern Gateway proposed pipeline.
94. In Ka’a’Gee Tu First Nation v Canada (Attorney General), 2012 FC 297 [Chicot 2], the Federal Court had to determine whether Canada fulfilled its duty to consult and, if appropriate, to accommodate, in the Court ordered consultation process instituted as a result of the previous decision of the Federal Court in Chicot 1. The (A52189) 24
scope of this court ordered consultation was not the entire environmental assessment process, but rather the failure of the government to consult at the last “consult to modify” stage. The court found that the consultation process following the first decision was meaningful for reasons including: KTFN participation, and participation of KTFN’s legal counsel, was fully funded; KTFN’s representatives attended all meetings and fully participated in the process which was uniquely designed and shaped by them; information was regularly and openly shared between Canada and KTFN, except in instances where KTFN expressed its wish that information be kept confidential, in which case KTFN’s wishes were respected, as was the case for the Traditional Knowledge study; the consultation process was on the record, and minutes recording the process were kept, circulated and approved by the parties; in accordance with KTFN’s wishes, the discussions only started after a consultation protocol describing the scope of the Court ordered consultations was drafted over the course of three months; and KTFN was given multiple opportunities to share their concerns, which were thoroughly discussed, and they were involved in exploring options to address their concerns. Further, the court noted that the bona fides of the discussion did lead to agreements on accommodating measures to address the concerns of KTFN with the Extension Project’s impacts on their treaty rights and asserted Aboriginal rights. As previously mentioned, the parties came to an agreement on an environmental monitoring and mitigation plan, as well as on a traditional land use compensation fund. For these reasons, the Federal Court held that the consultation process was meaningful and transparent and in conformity with the requirements set by the Supreme Court.
95. In Brokenhead Ojibway, 2009 FC 484, the process of consultation and accommodation employed by the National Energy Board was found to be sufficient. The proposed pipelines in this project ran over 1235 kilometres and 1078 kilometres, exclusively on land that was privately owned or subject to existing rights of way. The Federal Court held that the fact that the Treaty One First Nations may not have availed themselves fully of the opportunity to be heard before the NEB does not justify the demand for a separate or discrete consultation with the Crown. To the extent that regulatory procedures are readily accessible to Aboriginal communities to address their concerns about development projects like these, there is a responsibility to use them. However, in this case, the Crown duty to consult was at “the extreme low end of the spectrum involving a peripheral claim attracting no more than an obligation to give notice”: at paragraph 43. The pipeline projects in this case were built almost completely over existing rights-of- way and on privately owned and actively utilized land that was not likely to be available for land claims settlement currently or in the future. There was no evidence to prove that the proposed projects “would be likely to interfere with traditional Aboriginal land use or would represent a meaningful interference with the future settlement of outstanding land claims in southern Manitoba”: at paragraph 45. The Federal Court’s decision that the duty to consult was fulfilled in the context of NEB proceedings turned on the fact that the Crown had a duty to consult on the very low end of the spectrum. (A52189) 25
96. The Federal Court’s decision in Brokenhead Ojibway made an important comment regarding lands which formed a part of an outstanding land claim, stating:
I have no doubt, however, that had any of the Pipeline Projects crossed or significantly impacted areas of unallocated Crown land which formed a part of an outstanding land claim a much deeper duty to consult would have been triggered. Because this is also the type of issue that the NEB process is not designed to address, the Crown would almost certainly have had an independent obligation to consult in such a context: at para 44.
Heiltsuk’s continued assertion of sovereignty over its unceded land and waters as well as its involvement in British Columbia’s Treaty process triggers the deeper duty to consult indicated in Brokenhead Ojibway. Thus, the Crown has an independent duty to consult. Phase IV does not allow the Crown adequate time to engage in deep consultations with all impacted Fist Nations.
3.8. The solution is to consult
97. The Application is incomplete as consultation by both the Crown and Northern Gateway has not been completed. The JRP requires information regarding preliminary assessments such as strength of claim analyses in order to issue its recommendation. As such the process should be adjourned to allow the Crown to fulfil its duty to consult.
98. Provision of information and providing parties an opportunity to engage in the process without providing capacity to do so at a full level has limited the ability of First Nations to engage in the process. By failing to provide adequate capacity to parties to obtain legal support and the resources to dissect the thousands of documents, First Nations parties could be left without the ability to gain full information on the process that carries the potential to adversely impact their rights. The JRP process, through its failure to establish meaningful dialogue is not consultation. The Crown cannot redeem its consultation failings with over 80 Aboriginal groups within a six month time-frame.
4.0 Crown Infringing on Aboriginal Rights and Dishonouring Reconciliation Programmes
99. The Crown’s failure to consult with Heiltsuk is of particular concern in light of the Heiltsuk’s established commercial right to a herring spawn-on-kelp fishery. The Supreme Court of Canada recognized Heiltsuk’s Aboriginal right to the spawn-on-kelp commercial fishery in R v Gladstone, [1996] 2 SCR 723 [Gladstone]. The herring spawn-on-kelp harvest practice is integral to Heiltsuk’s distinctive culture (Oral evidence of Chief Marilyn Slett, April 5, 2012 at paragraph 29026). In Gladsone, the Court noted at paragraph 28 that: (A52189) 26
In Van der Peet, at para. 62, this Court held that a claimant to an aboriginal right need not provide direct evidence of pre-contact activities to support his or her claim, but need only provide evidence which is "directed at demonstrating which aspects of the aboriginal community and society have their origins pre-contact. It is those practices, customs and traditions that can be rooted in the pre-contact societies of the aboriginal community in question that will constitute aboriginal rights". In Van der Peet this was described as the requirement of "continuity" -- the requirement that a practice, custom or tradition which is integral to the aboriginal community now be shown to have continuity with the practices, customs or traditions which existed prior to contact. The evidence presented in this case, accepted by the trial judge and summarized above, is precisely the type of evidence which satisfies this requirement. The appellants have provided clear evidence from which it can be inferred that, prior to contact, Heiltsuk society was, in significant part, based on such trade. The Heiltsuk were, both before and after contact, traders of herring spawn on kelp.
The Court affirmed that Heiltsuk`s herring spawn-on-kelp fishery is integral to the community and affirms access to this right.
100. Following the Gladstone decision, Heiltsuk has been actively engaged with Fisheries and Oceans Canada (“DFO”) to gain access to the fishery (HTC written submissions Appendix D-G). The Gladstone Reconciliation process is focused on allocation and co-management issues, as well as capacity building. The process is on-going, and to date, Heiltsuk have not been provided the opportunity by DFO to exercise their affirmed Aboriginal right.
101. Allowing the Project to proceed essentially reverses the Court’s decision in Gladstone. Gladstone involved a right which took 10 years of litigation to prove, and taking it away through a regulatory process is not honourable.
Other reconciliation initiatives
102. Heiltsuk are also actively engaged in reconciliatory marine use planning activities both at a Nation level and at a government to government level, in an attempt to effectively manage the marine resources within their traditional territories. Notably, Heiltsuk are involved in the Pacific North Coast Integrated Management Area (PNCIMA) initiative, which represents a government to government reconciliatory process where members engage to make decisions to effectively manage ocean space and resources.
103. The impact of the PNCIMA initiative was substantially truncated following a December 2010 lobbying presentation by Northern Gateway to DFO. In cross examination, Mr. John Carruthers, President of Enbridge Northern Gateway Pipelines, testified that Northern Gateway’s presentation raised concerns regarding the funding of the initiative that it asserted would impact the credibility (A52189) 27
of the initiative.74 Mr. Carruthers would not testify that following the DFO withdrawal of funding, the PNCIMA initiative no longer includes marine zoning as an outcome.75
104. DFO testified that following the changes to the PNCIMA process, PNCIMA will not include spatial zoning:
17841. MR. McCORMICK: And is it the understanding of DFO -- or in the understanding of DFO, will the final version of the plan include marine planning and zoning?
17842. MS. BONNIE ANTCLIFFE: The final version of the plan will not include spatial zoning.76 DFO’s funding withdrawal and the resulting restriction in the scope of the PNCIMA initiative, following the investment by several First Nations of considerable resources, demonstrates the federal government’s failure to engage honourably in reconciliation programmes.
105. The Pacific Integrated Commercial Fisheries Initiative (“PICFI”), a DFO program provides aboriginal communities, including Heiltsuk, with additional licences for commercial fisheries in the Open Water Area. PICFI is a reconciliatory process designed to promote conservation and First Nations involvement in the commercial fishery. Heiltsuk Nation is involved in the PICFI initiative through the Central Coast Commercial Fisheries Association.77 Through the PICFI initiative, First Nation’s are involved in developing enhanced fisheries accountability, acquiring commercial access to fisheries, capacity building, and co-management of the fisheries. Pursuant to the PICFI initiative, Heiltsuk Nation is provided with additional licences for commercial access in the open water area initiative.78
106. The Allocation Transfer Program (“ATP”) serves a similar purpose. The ATP is an on-going program, designed to acquire commercial fishing licence eligibilities and then transfer the equivalent commercial fishing capacity to Aboriginal organizations in the form of communal commercial fishing licences.79 These programs exist to provide capacity to First Nations for joint management of sustainable commercial fisheries.80
74 International Reporting Inc. – OH-4-2011 Hearing Transcript March 15, 2013 – Vol. 153 at 28168. 75 International Reporting Inc. – OH-4-2011 Hearing Transcript March 15, 2013 – Vol. 153 at 28201. 76 International Reporting Inc. – OH-4-2011 Hearing Transcript April 23, 2013 – Vol. 168. 77 D85-3-09 Heiltsuk Tribal Council’s Written Evidence, Appendix H at page 7. 78 International Reporting Inc. – OH-4-2011 Hearing Transcript Feb. 25, 2013 – Vol. 144 at 15806-15810. 79 DFO Allocation Transfer Program, online: < http://www.pac.dfo-mpo.gc.ca/abor-autoc/atp-ptaa- eng.html>. 80 International Reporting Inc. – OH-4-2011 Hearing Transcript Feb. 25, 2013 – Vol. 144 at 15809-15814. (A52189) 28
107. Heiltsuk are also engaged with DFO in commercial clam joint management since 1993.81 Since 1993, the Heiltsuk clam fishery has produced landings, which have varied in value between $111,000 and $385,000. This reconciliatory program represents a considerable source of economic benefit and brings pride to the Heiltsuk community. An oil spill in the open water area could have the consequence of loss of this incredibly valuable reconciliatory programme.
108. The above programs represent reconciliation activities that the Crown and Heiltsuk are engaging in and signify recognition of Heiltsuk’s Aboriginal rights. If the Project is allowed to proceed, the Crown risks exploiting the resources available to Heiltsuk Nation pursuant to Gladstone and other reconciliation programmes. These risks constitute an infringement of Heiltsuk’s Aboriginal rights. In allowing these risks, the Crown is not acting honourably.
5.0 Submissions Adopted
109. Hemas adopt the submissions of Heiltsuk Tribal Council, Heiltsuk Economic Development Corporation, and Heiltsuk Youth Voice.
6.0 Conclusion
110. Discharging the duty of the Crown to consult should be the priority. Canada should complete its consultation with First Nations and aboriginal groups before it proceeds any further with the JRP process.
111. The Gvi’ilas directs that there be balance in the health of the resources, and the needs of Heiltsuk, to ensure there will always plentiful resources. Northern Gateway’s application lacks in critical information, and proceeding in the absence of key information is contrary to prudent or wise stewardship.
81 D85-5-29 Heiltsuk Tribal Council’s Additional Written Evidence, HTC DFO Intertidal Clam Joint Management Plan at page 6. (A52189) (A52189) (A52189)
(A52189) 1
2.1. HEILTSUK TRIBAL COUNCIL ...... 5 2.2. HEILTSUK NATION’S LIMITED INVOLVEMENT IN THE JOINT REVIEW PROCESS .... 5
5.1. NO BASELINE FOR MARINE LIFE ...... 11 5.2. INADEQUATE SPILL MODELLING ...... 14 5.3. INADEQUATE INFORMATION ON BITUMEN/CONDENSATE FATE ...... 17 5.4. INADEQUATE INFORMATION ON RESPONSE TIME IN THE OPEN WATER AREA ..... 25 5.5. INSUFFICIENT GEOGRAPHIC RESPONSE PLANS FOR THE OWA ...... 27
ADVERSE ENVIRONMENTAL EFFECTS LIKELY 8.1. AN OIL SPILL IS LIKELY TO OCCUR ...... 42 8.2. LIKELY THAT ROUTINE OPERATIONS WILL HAVE A SIGNIFICANT ADVERSE IMPACT 43
9.1. THE CURRENT INFORMATION IS INSUFFICIENT FOR A REPORT ...... 44 9.1.1. A “complete” application means sufficient information ...... 44 9.1.2. An environmental assessment also means sufficient information ...... 45 9.1.3. Information duties specific to aboriginal rights and interests ...... 47 9.1.4. The Joint Review Panel is not in a position to report ...... 48 9.2. ALTERNATIVELY A REPORT SHOULD RECOMMEND FURTHER HEARINGS ...... 49 9.2.1. The need for further information and studies ...... 49 9.2.2. The need for information necessary to manage future risk ...... 49 9.3. ANY RECOMMENDATION SHOULD BE AGAINST THE PROJECT ...... 52
(A52189) 2
1.0 Introduction
“Heiltsuk continue to steward our marine resources today not only through technical and scientific means but also through legal means wherever possible. We recognize that our Heiltsuk Aboriginal rights and title within our traditional territories need to be protected in order for us to continue to be able to steward our resources. For this reason, we have fiercely pursued the protection of Heiltsuk’s constitutionally protected rights and title from outside infringement through the courts.”1
2.0 Heiltsuk Nation
1. The Heiltsuk Nation is a sovereign nation. Heiltsuk asserts aboriginal rights and title to their lands and waters, including the right to steward marine and land resources. Heiltsuk have never surrendered or ceded these rights to the Crown or otherwise.2
2. Heiltsuk have lived in their traditional territory since time immemorial. Their traditional territory encompasses 16, 658 square kilometres of land, as well as extensive nearshore and offshore waters in an area now known as the Central Coast of British Columbia.3 It extends from the southern tip of Calvert Island north to Klekane Inlet across from Butedale, inland from the head of Dean Channel and Inlet to the offshore area west of Goose Island, Aristazabal Island, and Calvert Island, and the intervening inlets, channels, islands and waterways.4
3. Today, most Heiltsuk live in the community of Bella Bella, which is located on Campbell Island, on the Central Coast of British Columbia.5
4. Heiltsuk are ocean people. They depend on a wide range of marine resources, and their relationship with the environment, including the marine resources, forms an integral part of the Nation’s cultural, social, economic, spiritual, and physical well-being.6 Archaeological evidence connects the Heiltsuk Nation to the sea, with salmon being found in layers of Heiltsuk shell middens from 7,000 years ago.7
5. Heiltsuk make use of their entire traditional territory in an intensive way. Altogether, they use nearly 180 locations or areas as sources of food, including
1International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29030. 2 D85-3-02 – Heiltsuk Tribal Council Written Evidence, adobe page 3. 3 D85-3-14 – Heiltsuk Tribal Council Written Evidence – Appendix O, adobe page 14 4 D85-3-16 – Heiltsuk Tribal Council – Appendix A; International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29012. 5 D85-3-14 – Heiltsuk Tribal Council – Appendix O, adobe page 18. 6 D85-3-02 – Heiltsuk Tribal Council’s Written Evidence, adobe page 7. 7 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 - Vol. 38 at para 28385. (A52189) 3
approximately 140 from within Heiltsuk territory and 40 from outside. From these locations, the Heiltsuk obtain the majority of their traditional foods, including salmon, seaweed, herring and herring roe, among others. It is these highly nutritious traditional food sources which compose the majority of the Heiltsuk diet. 8
6. The hunting, harvesting and sharing of these traditional foods is an integral component of Heiltsuk culture. In addition to being crucial to the physical health of the Heiltsuk, the hunting and gathering of these traditional foods serves as an important tool for the transmission of knowledge between the Elders and young people. The hunting and harvesting of traditional foods also serves to affirm the connection of the Heiltsuk to the sea, and the strong communal ties that are present in Heiltsuk society.9
7. Heiltsuk Hemas are the hereditary chiefs who govern by Gvi’ilas, which are the traditional laws. Gvi’ilas include laws on the stewardship of Heiltsuk territory and their resources.
8. Heiltsuk Hemas are the hereditary chiefs who govern by Gvi’ilas, which are the traditional laws. Gvi’ilas include laws on the stewardship of Heiltsuk territory and their resources. For example, Gvi’ilas requires that when marine harvesting, Heiltsuk take what they need, and release the rest, so are to continue to sustain resources.10
9. The Heiltsuk youth hold the honour and responsibility to steward Heiltsuk environment and culture. Stewardship knowledge is passed onto the youth through a tradition of oral teaching and practice. To ensure the continuance of Heiltsuk knowledge and tradition, the Heiltsuk Youth Voice, a youth group, was established to empower youth and to actively advocate for Heiltsuk youth on their issues of concern.
10. The abundance of marine resources at the time of contact is testament to Heiltsuk success in their traditional stewardship of the sea. By the late 19th Century, however, the federal government was drastically curtaining Aboriginal access to fisheries through legal instruments, restricting the place, time, manner in which Aboriginal fisheries could be executed, as well as outlawing the sale of fish from these fisheries.11
11. The federal regulations favoured the industrialization of the fisheries and marginalized Aboriginal fisheries into the restricted communal food fisheries that largely remain today. The result of these regulations, along with other effects
8 D85-509 - Heiltsuk Tribal Council’s Written Evidence, adobe page 4. 9 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 - Vol. 38 10 International Reporting Inc. – OH-4-2011 Hearing April 3, 2012 - Vol. 37 at para 27106. 11 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29028. (A52189) 4
from rapid settler development, is manifested in the dramatic decline suffered by this fishery since contact.12
12. Heiltsuk continue to steward their marine resources today not only through technical and scientific means but also through legal means wherever possible. Heiltsuk recognize that their Aboriginal rights and title within Heiltsuk traditional territories need to be protected in order to continue to be able to steward Heiltsuk resources. Heiltsuk’s stewardship of its marine resources is inextricably tied to the Heiltsuk community’s wellbeing. For this reason, the Heiltsuk have fiercely pursued the protection of Heiltsuk’s constitutionally protected rights and title from outside infringement through the courts.13
13. An important part of recent Heiltsuk history is the seminal case, R v. Gladstone14 [Gladstone], which was ultimately heard before the Supreme Court of Canada after years of litigation aimed at protecting Heiltsuk’s right to harvest and sell herring spawn.15 The Supreme Court of Canada recognized Heiltsuk’s right to harvest and sell herring spawn.
14. The Heiltsuk Nation has 23 reserves, with the closest reserve located approximately 168 kilometres from the proposed Kitimat Terminal.16 As of December, 2011, the Heiltsuk membership was 2,285, with 1,096 living on Heiltsuk reserves, 75 living on other reserves, 1 living on own-crown land, and 1, 114 living off reserve.17 By 2055 it is anticipated that the Heiltsuk population will increase to approximately 5,200.18 Chief Edwin Newman testified that the locations of Heiltsuk reserves demonstrate Heiltsuk’s relationship with the sea:
This is a high cost area. It's important for us that we protect the resources and the sea. When our Reserves were created, the government realized that the Heiltsuk people were totally dependent on the sea for its economic opportunities for its economy.19
15. The closest Heiltsuk reserve to the proposed shipping route is approximately 88.4 kilometres from the proposed shipping route.20 The proposed southern approach for the Project Shipping route squarely intersects with Heiltsuk Traditional Marine Territory.21
12 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29029. 13 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29030. 14 R v. Gladstone, [1996] 2 SCR 723. 15 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29031. 16 B24-2 – Update to Application Vol. 5A, at adobe page 329. 17 D85-5-10 – Heiltsuk Tribal Council’s Written Evidence. 18 D85-3-13 – Heiltsuk Tribal Council’s Written Evidence, Appendix 0 at adobe page 20. 19 International Reporting Inc. - OH-4-2011 Hearing April 3, 2012 - Vol. 37 at para 27160. 20 B24-2 – Update to Application Vol. 5A, at adobe page 329. 21 D85-3-16 – Heiltsuk Tribal Council’s Written Evidence, Appendix A. (A52189) 5
2.1. Heiltsuk Tribal Council
16. Heiltsuk are politically governed by the Heiltsuk Tribal Council (“HTC”). HTC is Heiltsuk Nation’s elected political governance organization.
17. HTC established the Heiltsuk Integrated Resource Department to manage the Nations’ land and marine resources.22
18. HTC established the Heiltsuk Economic Development Corporation (HEDC) to manage the business affairs of Heiltsuk. The HEDC is focused on developing capacity within Heiltsuk Nation through a variety of economic activities and initiatives.23 2.2. Heiltsuk Nation’s Limited Involvement in the Joint Review Process
19. The Amended Joint Review Panel Agreement sets out that the Government of Canada will rely upon the consultation effort of the proponent, and the Joint Review Panel process, to the extent possible, to assist in meeting its duty to consult.24
20. Heiltsuk Nation has asserted, and continues to assert, that the JRP process is not a consultation process. Heiltsuk Nation considers the JRP process to be a flawed process that cannot constitute adequate consultation. There is no real opportunity for First Nations to participate in the extensive JRP process given the little funding available. Fundamentally, the lengthy adversarial process, which included impediments such as objections which had the result of excluding written and oral information, a requirement that First Nations to make applications to cross-examine the government (five of which were refused the ability to cross-examination), a lengthy 90 day hearing stretched over 7 months, and intervenors having to cross examine panels of sometimes 15-30 experts, is not consultation. It is disingenuous for Canada to assert that the JRP rules of procedure did not require counsel in order for First Nations to participate in the JRP process:
27005. MR. TERENCE HUBBARD: And -- Terry Hubbard here. Just to elaborate on what my colleague said.
27006. My understanding is there is no requirement for legal counsel to participate in the JRP process. And the process has been set up to facilitate public and Aboriginal participation in the process, including providing various means for participation, including letters of comment, oral statements
22 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at para 29018, Chief Councillor Marilyn Slett. 23 D85-3-09 – Heiltsuk Tribal Council’s Written Evidence, Appendix H, at adobe page 10. 24 B174-7 – Amended Joint Review Panel Agreement, at adobe page 2. (A52189) 6
or full intervenor statuses and some of the groups participating today in the process are.
27007. So there’s been various mechanisms set up to enable and facilitate participation in this process.25
The JRP process is a massive, adversarial, legal process that requires legal advice and representation in order to be able to meaningfully participate.
21. Despite the serious flaws inherent in the JRP process, because there is no other avenue to engage in consultation or in the environmental assessment available, Heiltsuk Nation is reluctantly participating.
22. Hemas, HTC, Heiltsuk Youth Voice, and HEDC have not been able to participate fully in the extensive JRP processes and hearings. This limitation to participation is addressed fully in the closing submission of Hemas, which is adopted by HTC.
23. The government’s duty to consult with Aboriginal peoples and accommodate their interests in grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples.26 The degree of consultation required in a given situation depends on the prima facie strength of the First Nation’s claim to its asserted Aboriginal right, and the potential risk of infringement of that right due to the Crown’s considered action.27 The Crown has failed to honour its Haida obligations. The key consultation issues are summarized as follows:
The Crown has failed to conduct a preliminary strength of claim assessment but purports to be consulting with Aboriginal groups through this JRP process;28 Canada has not consulted directly with Heiltsuk Nation;29 The proponent has not fulfilled its required procedural consultation obligations to Heiltsuk Nation;30 This lengthy adversarial JRP process is not consultation; separate and meaningful consultation is required;31
25 International Reporting Inc. - OH-4-2011 Hearing April 30, 2013 - Vol. 174. 26 Haida Nation v. British Columbia (Minister of Forests), [2004[ 3 SCR 511 at para 16 [Haida]. 27 Haida at para 44. 28 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at paras 26652-25559, paras 26901-26904, 26737-26743; Heiltsuk Hemas final written submissions at paras 45-46 noting the Crown decision to attempt to discharge its duty to consult in Phase IV. 29 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at paras 27392- 27728 (Carrie Humchitt cross-examination). 30 International Reporting Inc. – OH-4-2011 Hearing December 15, 2012 Vol. 153 at para 16608; Heiltsuk Hemas final written submissions at paras 50-54 which note Northern Gateway’s limited engagement with Heiltsuk, and attempt to discharge its consultation obligations by consulting with separate organizations which Heiltsuk is a part of, without the express permission of Heiltsuk Nation. (A52189) 7
Heiltsuk Nation has been denied meaningful consultation through Canada’s refusal to directly consult; Phase IV is too late to consult properly;32 The JRP process was created without meaningful consultation with Heiltsuk Nation;33 Heiltsuk Nation and other Aboriginal group participation in the JRP process was not adequately funded to allow for meaningful participation;34 and Canada has created a lengthy and very legalistic JRP process in combination with providing such limited support to Aboriginal groups that this has limited Aboriginal involvement in the JRP process.35 3.0 Heiltsuk Tribal Council’s position in summary
24. HTC’s position is that Northern Gateway’s application lacks certain crucial information relating to the open water area – information that goes to the heart of the Joint Review Panel’s ability to have regard to all relevant factors, including the potential for adverse environmental effects of a spill in the open water area, and the feasibility of mitigating measures.
25. The Hemas, in their closing submission, explain Gvi’ilas, the traditional laws, which direct a balance between resources and the needs of their people, ensuring that there will always be plentiful resources. The Hemas have honoured and maintained their 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 survival and well-being.
26. Gvi’las requires that there be adequate information gathered before important resource stewardship decisions can be made. Northern Gateway’s lack of certain crucial information about the open water area and the potential effects of an oil spill mean that there is not adequate information for this important stewardship decision to be made.
27. As a result, Northern Gateway’s application is not “complete” at this time, and the Joint Review Panel is not in a position to consider all relevant information, or to be fully informed about the potential impacts of a project on Aboriginal rights and interests, as mandated by its own terms of reference. As a result, the hearing should be adjourned until Northern Gateway provides the information and
31 Heiltsuk Hemas final written submissions at para 78 notes the Haida dialogue requirement. 32 Heiltsuk Hemas final written submissions at paras 45-49. 33 Heiltsuk Hemas final written submissions at paras 79-82 demonstrates the lack of Aboriginal involvement in developing the JRP process. 34 International Reporting Inc. – OH-4-2011 Hearing April 30, 2013 Vol. 174 at paras 26997-27018, 27473-27487; Heiltsuk Hemas final written submissions at paras 62-69 notes several Aboriginal groups who were restricted in participation through lack of funding. 35 Heiltsuk Hemas final written submissions at paras 58-98. (A52189) 8
undertakes the studies that the Department of Fisheries and Oceans and Environment Canada alike have found lacking in the current materials.
28. Also, due to the absence of the same crucial information relating to the breadth and scope of potential adverse environmental impacts from a spill in the open water area, the Joint Review Panel is not in a position to complete its environmental assessment and the hearing should be adjourned until Northern Gateway provides necessary information and undertakes necessary studies.
29. If the Joint Review Panel should decide that it is in a position to provide a report, the fact remains that it is lacking crucial information to rule out unmanageable and potential disastrous spills in the open water area. In the event of a report and an environmental assessment, Heiltsuk submits that the recommendation should be against the Project proceeding until such time as Northern Gateway can obtain the necessary information and undertake the necessary studies, which it may bring forward for reconsideration.
30. Further or alternatively, HTC submits that on a precautionary approach, the Joint Review Panel must at this time presume a potential for severe environmental impacts due to a spill in the open water area. Therefore, a spill could result in severe, and indeed catastrophic, effects on all aspects of Heiltsuk Nation, from its aboriginal rights, to the fabric of its culture, to its economy, to its overall well- being, all of which flow from or rely on marine resources to survive.
31. For these reasons, which will be examined in depth below, the Joint Review Panel should recommend, and the Governor in Council should conclude, that the potential impacts of spills on the public interest, including their impact on Heiltsuk rights and interests, and the potential adverse environmental impacts of spills, are not justified in the circumstances.
4.0 Factors the JRP must consider
32. The Hearing Order includes the factors that the JRP must be considered during its environmental assessment of the Project and related public interest determination:
List of Issues
Need For the Proposed Project Need for the Project as proposed by the applicant 1.1 supply and markets for the oil and condensate to be transported by the Project 1.2 commercial support for the Project 1.3 economic feasibility of the proposed facilities
Potential Impacts of the Proposed Project 2 Potential impacts on: 2.1 Aboriginal interests including: (A52189) 9
2.1.1 socio-economic matters listed in Issue 4 2.1.2 asserted and proven Aboriginal rights (including Aboriginal title) 2.1.3 treaty rights
Environmental Effects 3 Potential effects on the environment including: 3.1 protected areas 3.2 wildlife and wildlife habitat 3.3 fish and fish habitat 3.4 atmosphere including greenhouse gas emissions 3.5 vegetation 3.6 species at risk 3.7 marine environment 3.8 water, hydrology, and wetlands 3.9 soils, terrain and geology 3.10 cumulative effects 3.11 effects of the environment on the Project, including geohazards
Socio-economic Effects 4 Potential effects on socio- economic matters, including: 4.1 human occupancy and resource use 4.2 heritage resources 4.3 traditional land and resource use 4.4 social and cultural well-being 4.5 human health 4.6 infrastructure and services 4.7 employment and economy
Consultation 5 Consultation with the public and Aboriginal groups on the Project ...
Safety, Accident Prevention and Response 13 Risks of potential hydrocarbon releases related to the Project including: 13.1 likelihood of failures, accidents and malfunctions 13.2 potential release volumes 13.3 consequences of any release, including geographical extent 14 Safety measures in place to protect people, communities and the environment 15 Whether the proposed risk assessment, mitigation and prevention measures and programs are appropriate for the design, construction, operation and abandonment of the proposed facilities 17 proposed plans and measures for emergency preparedness and response (A52189) 10
17 Financial resources and other compensation measures available in the event of an accident or malfunction.36
33. Pursuant to Part III of the Terms of Reference of the Amended Joint Review Panel Agreement, the JRP will give regard to the Scope of Factors document.37 The document, issued by the Canadian Environmental Assessment Agency, notes that the proponent shall consider the Marine Spatial Boundaries, including, with respect to the assessment of the potential effects related to an accidental release of oil or condensate, expanded spatial boundaries, to take into account areas that could be affected by a potential accident or malfunction.38
34. The goal of providing the baseline information is to provide a complete description of the biophysical and socio-economic settling, including the current state of the environment within the study area. This is equally applicable for both the terrestrial and marine components of the Project.39 The proponent must provide a sufficient description of the local setting to allow the Panel, other regulators, the public and others to clearly understand the rationale for environmental assessment decisions.40 The proponent is encouraged to consult with government documents and agencies regarding the study design and methodology, and the availability of applicable guidance material.
35. The scope of the factors also sets out that the proponent will identify the lands, waters and resources of specific social, economic, archaeological, cultural or heritage value to Aboriginal groups, including Métis, that assert Aboriginal rights that may be affected by project components.41
36. The proponent must also assess the cumulative effects of the Project, and should refer to the Canadian Environmental Assessment Agency's Cumulative Effects Assessment Practitioners Guide (1999).42
5.0 Insufficient operational information in the OWA
37. Northern Gateway’s application fails to provide sufficient information relating to the open water area despite the fact that the lengthiest part of the Canadian tanker traffic route is in the open water area. This is a significant oversight. In the Exxon Valdez oil spill (“EVOS”), while the tanker sank relatively close to shore, the oil traveled and covered all or part of approximately 1,315 kilometres of shoreline in the Gulf of Alaska, as well as 78 kilometres of shoreline among the islands of
36 A31-1 – Hearing Order OH-4-2011 for the Northern Gateway Pipelines Inc. Enbridge Northern Gateway Project, Appendix I, at adobe pages 25-26. 37 B174-7 – Amended Joint Review Panel Agreement, at adobe page 13. 38 E9-20-23 – Government of Canada – Scope of the Factors, at adobe page 9. 39 E9-20-23 – Government of Canada – Scope of the Factors, at adobe page 9. 40 E9-20-23 – Government of Canada – Scope of the Factors, at adobe page 10. 41 E9-20-23 – Government of Canada – Scope of the Factors, at adobe page 12. 42 E9-20-23 – Government of Canada – Scope of the Factors, at adobe page 19. (A52189) 11
Prince William Sound.43 The distance between any point on the Project’s tanker route and the nearest shore in any part of the open water area is not nearly as much as 1300 kilometers.
5.1. No Baseline for Marine Life
38. Northern Gateway did not gather any marine life baseline data south of Fisheries Management Area 6, at Prince Island. Specifically, the Marine Fish and Fish Habitat Technical Data Report, which provides the baseline characteristics of the biophysical elements of marine fish and fish habitat, does not include any analysis of the Open Water Area.44 Likewise, the Marine Fisheries Technical Data Report only describes the baseline characteristics of marine fisheries in the CCAA and in the project effects assessment area.45
39. Northern Gateway admitted to not employing a key indicator (KI) analysis to determine the most susceptible marine bird species in the open water area.46 The rationale, explained by Mr. Green, was that Northern Gateway did not believe that there were effect pathways between marine shipping and the open water area that will result in any significant effects on birds.47 But Mr. Green agreed that red- necked phalarope (a blue listed species), Cassin’s auklet, and rhinoceros auklet all forage in open water.48
40. More generally, Mr. Green admitted that Northern Gateway did not conduct marine life baseline surveys in the open water area as it decided they were not needed in order to complete the environmental assessment.49 Northern Gateway also neglected to complete baseline vegetation surveys of coastlines within the open water area.50
41. Under cross-examination by Coastal First Nations, Mr. Green again admitted that Northern Gateway did not conduct baseline surveys, but he asserted that the literature studied was adequate:
10451. MS. MORELLATO: Well, my understanding is -- let’s keep it simple and then let’s move on. You haven’t done any field surveys in the area of vegetation, benthic invertebrates, marine fish and marine birds?
10452. MR. JEFFREY GREEN: We have not conducted surveys for any biological group in the open water area ---
43 B3-42 – Application Vol. 8C, at adobe page 50. 44 B9-25 – Marine Fish and Fish Habitat TDR (Part 1 of 15) at adobe page 17. 45 B9-40 – Marine Fisheries TDR (Part 1 of 2) at adobe page 21. 46 International Reporting Inc.- OH-4-2011 Hearing December 10, 2012- Vol. 111 at para 8286. 47 International Reporting Inc.- OH-4-2011 Hearing December 10, 2012- Vol. 111 at para 8341. 48 International Reporting Inc.- OH-4-2011 Hearing December 10, 2012- Vol. 111 at paras 8426 - 8341. 49 International Reporting Inc.- OH-4-2011 Hearing December 10, 2012- Vol. 111 at paras 8491-8494. 50 International Reporting Inc. - OH-4-2011 Hearing December 11, 2012 - Vol. 112 at paras 10333-10336. (A52189) 12
10453. MS. MORELLATO: In the water, okay.
10454. MR. JEFFREY GREEN: --- for two reasons. One is that we believe there is adequate information to conduct our assessment from the published literature, and we’ve done that in the assessment that’s attached.
10455. Secondly, for a number of these species we do not believe there is a realistic effect pathway between the movement of a vessel under routine operations. And we will talk about oil spills in the next panel. But with routine operations with vessels moving through this area we do not think there is a reasonable expectation that there will be effects on these species groups.51 (emphasis added)
However, Mr. Green’s position that “there is adequate information to conduct our assessment from the published literature” is difficult to rationalize when the assessment he makes reference to clearly states:
13.7.1 Setting for Marine Mammals
... There is limited knowledge concerning the abundance, distribution and critical habitat of many species ...
...
There is limited knowledge and variations in habitat use for most marine mammals in the OWA ... The abundance of some populations is not well understood. Some information about habitat use comes from sources for which the accuracy and level of effort are not known ...52
42. The importance of the Board having baseline marine life information for the Open Water Area is that any assessment of potential adverse environmental impacts of an oil spill or tanker movement cannot reasonably be done without baseline marine life information.
43. On May 1, 2013, the last day of hearings, Member Bateman asked Dr. Short about the reliability of baseline studies in the context of Dr. Short’s explanation that mere appearance without study does not explain what is actually occurring to the marine eco-system. Dr. Short responded by explaining that he views baseline studies as invaluable to assessing the after-effects of an adverse environmental event, and while the assessed after-effects may not be completely accurate, it is more knowable than not doing the studies.
51 International Reporting Inc. - OH-4-2011 Hearing December 11, 2012 - Vol. 112 at paras 10452-10455. 52 B3-35 – Application Vol. 8B, at adobe page 24. (A52189) 13
28648. DR. JEFFREY SHORT: And sea otters -- based on work elsewhere -- have profound structuring effects on the near shore subtidal community and it operates either predation on sea urchins, this is classic work that’s been described.
The sea otters prey on sea urchins by removing the sea urchins which prey on algal -- rooted algal vegetation. You encourage the -- promote the growth of algal -- of kelp forests, the kelp forests provide cover for innumerable species of fish, invertebrates and other animals and it just has a big structuring effect from that overall on the whole food web.
28650. That didn’t seem to happen in the Exxon Valdez when people looked for it. But we don’t know what did happen because we didn’t have much of a good idea of what the food web looked like prior to the incident.
28651. So when I make this reference to ignorance, it's often a conclusion that’s jumped to, that yes, these things recover because they look kind of the same if you fly over them or float over them in a boat. But you don’t actually know what's going on all that well below the water and how it responded and whether it's changed permanently or not.
28652. MEMBER BATEMAN: Is your scientific view that baseline studies establish a reasonable degree of certainty or these are things, due to their complexity, simply cannot be known?
28653. DR. JEFFREY SHORT: My view is that baseline studies are invaluable for assessing what effects after an event are. And there are some baseline studies that I would argue are more important than others, particularly those that focus on the apex predators. It's been widely acknowledged in the terrestrial ecological literature that, you know, an ecosystem that can support wolves is fundamentally in pretty good shape. Because to support a healthy wolf population, that means an awful lot else has to be in good shape too.
28654. That applies with respect to marine ecosystems as well. If you have more or less the same fishery populations and the same natural assemblage and population of predators that prey on them, for a lot of purposes that’s reassuring that the ecosystem is pretty close to what it was, presuming it got back to that after a perturbation event.
28655. So I think these things are while not completely knowable, they're certainly knowable with more confidence than is usually the case when a spill pops up on us unprepared somewhere. 53(emphasis added)
53 International Reporting Inc. – OH-4-2011 Hearing Transcript May 1, 2013 – Vol. 175. (A52189) 14
5.2. Inadequate Spill Modelling
44. Northern Gateway has not provided a completed assessment of how oil and condensate might spread from marine accidents along all shipping routes, which is necessary for assessing potential adverse environmental impacts, including the breadth of potential damage by an open water spill to marine life and shore life.
45. Indeed, Fisheries and Oceans Canada’s Science Branch asked Northern Gateway in Government of Canada Information Request 2.73 and 2.76 for a more comprehensive assessment of the spread of oil and condensate through Canadian waters from marine accidents along all of the shipping routes, rather than just for the six scenario sites presented in the Environmental Impact Statement. The assessment as presented does not consider the total geographic area that could be at risk from an oil spill from an incident involving a tanker.54
46. DFO noted, in responding to an information request of Gitxaala Nation concerning additional requests with regard to spill modelling, this kind of assessment is relevant particularly as it relates to potential damage to marine biological resources. For example, consideration could be given to whether a spill would reach Cook Bank in Queen Charlotte Sound, or Queen Charlotte Strait, and whether a spill could reach the west coast of Haida Gwaii, or reach Chatham Sound or west coast Vancouver Island. In particular, where the impacts would be most likely to occur may be better understood if more scenarios over a wider geographical area were considered.55
47. Conversely, Northern Gateway’s spill modelling did not provide reliable information given the inadequacy of the model itself. Environment Canada has commented with respect to Northern Gateway’s modelling of oil dispersion, in its technical review, that the modelling provides “unrealistic results” and needs “significant revision”:
The percentage of oil dispersed is highly overestimated. The algorithm used to model oil dispersion provides unrealistic results. Not only do the data show considerable overestimation of the dispersion, but they also show questionable variations of the process with time. The model needs significant revision and validation. Similar observations were made when checking modelling results for the specific examples discussed in Section 4.2 in Hay and Co. (2011a). Not only the results show overestimations of the dispersion of oil, but also oil re-surfacing was not taken into consideration. For instance, for the spill example discussed in page 2-26 of
54 B46-2 – Northern Gateway Response to IR No 2 from the Federal Government at pages 178-180. 55 E9-21-09 – Federal Government Participants’ Response to IR No 1.8.5.2 from Gitxaala Nation, at adobe pages 64 and 65. (A52189) 15
the report, Figure 4-18 shows relatively calm wind conditions during the first three days of the simulation.56
48. Consequences of inadequate spill modeling include the serious issue of not being able to plan properly for emergency response processes. In response to Haisla Nation’s information request 1.46a, Environment Canada said the following and made a recommendation to conduct further research:
Based on the oil properties and chemical distributions data provided by Northern Gateway, and, in combination with existing data measured by Environment Canada and others, a limited assessment of the effectiveness of spill response operations can be made. For example, skimmer effectiveness, pumping and storage have all been studied for high viscosity oils similar to bitumen products.57
49. In general with respect to the Northern Gateway’s planning model, evaporation model and emulsion formation model, Environment Canada noted, “that there continue to be significant uncertainties that are not addressed by the [Northern Gateway’s] submissions.”58
50. Environment Canada repeated this same view in its written evidence:
Uncertainties do remain however, in particular with regard to the behaviour of the product in the environment and the use of chemical countermeasures. To ameliorate this situation, Environment Canada has recommended further research as indicated in Recommendations #2-3 and #2-4.59
51. Environment Canada was asked under cross examination about recommendations it would make regarding locations for further spill modeling work. Laura Maclean with Environment Canada testified that additional spill modelling sites should be chosen by a scientific advisory committee to be established which would include Environment Canada and Northern Gateway:
MS. LAURA MACLEAN:
...
And your question was whether the department might offer a list or some specific recommendations about where spill scenarios should be conducted.
56 E9-39-2 – Environment Canada – Technical Review of Enbridge Northern Gateway Spill Modelling Studies and Related Environmental Consequence Analysis, at adobe page 24. 57 E9-21-12 – Federal Government Participants’ Response to IR No 1.46a from Haisla Nation, at adobe page 85. 58 E9-6-32 – Environment Canada Written Evidence, at adobe page 20. 59 E9-6-32 – Environment Canada Written Evidence, at adobe pages 22 and 23. (A52189) 16
Our recommendation actually suggests the establishment of a scientific advisory committee. In our view, that committee would be multi-disciplinary and multi-party. It would presumably involve biologists with expert knowledge of the Project area.
And so I think what we would say is we would look to that advice that might come out of the discussions of that Science Committee in terms of the appropriate selection of spill scenarios. And I would envision Environment Canada certainly having something to contribute to that committee but, at this time, I’m not sure we would have any specifics.
....
MS. FONG: And is it Environment Canada’s intention to be a participant in that committee or sorry, a member of that committee?
MS. LAURA MACLEAN: It -- it absolutely would be, yes.
MS. FONG: And has it been accepted by Northern Gateway that Environment Canada will be a member of that committee?
MS. LAURA MACLEAN: Our apologies for the delay, just conferring with -- with my colleagues.
So we have seen from Northern Gateway a framework for the formation of the Scientific Advisory Committee and it certainly does reference Environment Canada and we do see ourselves playing a role. But beyond that, we haven’t had the opportunity to get into specifics about the committee’s structure. Those would be details that would be worked out at a later date.60
52. When asked whether the spill modeling work should be completed prior to any tankers running in the ocean, Ms. Maclean confirmed that Environment Canada would recommend that the work be completed before any tankers were operating in the water.
MS. FONG: I wanted to understand whether Environment Canada had a view as to whether the recommended additional spill modelling, all that work, should be completed prior to tankers being on the water and running the route?
MS. LAURA MACLEAN: Thank you for restating. And with that clarification in mind, yes, Environment Canada would recommend that the
60 International Reporting Inc. – OH-4-2011 Hearing Transcript April 23, 2013 – Vol. 168, at paras 18301- 18309. (A52189) 17
additional spill modelling be completed prior to commencement of operations. 61
53. Given the unknown amount of time it would take to establish the Scientific Committee, its terms of reference, and the parameters for the additional spill modeling, Dr. Khelifa for Environment Canada advised that he could not estimate how long the work would take to be completed:
MS. FONG: My next question is, with the recommended additional spill modelling, is there -- are you able to give us a timeframe of how long that work takes to be completed? For example, are we talking months, are we talking years?
DR. ALI KHELIFA: Hi, this is Ali Khelifa again.
I think that question should be directed to -- to the -- to Enbridge, not to us. It’s -- it’s them that will conduct this additional spill modelling, I guess.
MS. FONG: Dr. Khelifa, given your experience with spill modelling, are you able to say how long this type of work typically takes?
DR. ALI KHELIFA: Not at this stage, I think before we -- we make a sound statement, we have to define the -- the magnitude, the amount of work and we said previously that this is the task that the Scientific Committee will address.62
5.3. Inadequate information on bitumen/condensate fate
54. Northern Gateway’s scientific testing and conclusions on bitumen/condensate are incomplete. The lack of scientific information is important to this environmental assessment because spill impacts and responses cannot be properly assessed without sufficient science on how bitumen/condensate will behave in ocean water. 55. In response to information request 1.8.2.5 from the Gitxaala Nation, Environment Canada noted that the properties of the products to be transported are fundamental to understanding the behaviour of the product following any release, its eventual fate and the effects it may have on the ecosystems it touches. Environment Canada also noted that it is responsible for providing specialized scientific and
61 International Reporting Inc. – OH-4-2011 Hearing Transcript April 23, 2013 – Vol. 168, at paras 18315- 18316. 62 International Reporting Inc. – OH-4-2011 Hearing Transcript April 23, 2013 – Vol. 168, at paras 18327- 18330. (A52189) 18
technical advice on oil properties, behaviour, fate, and incident countermeasures, as well as spill trajectory modelling.63 56. In recommendation #2-3, Environment Canada recommended that Northern Gateway consider an ongoing research effort into the environmental behaviour and fate models for the hydrocarbon products to be shipped. In reply evidence filed July 20, 2012, Northern Gateway agreed, stating that in the event that the Project is approved, they agree to engage in a “collaborative research effort into the environmental behaviour and fate models for diluted bitumen.”64
57. Given the importance of understanding how bitumen/condensate will behave in a spill and the lack of sufficient information, further studies, concerning the behaviour should be conducted before any approval is granted.
58. Northern Gateway’s conclusions on spill impact and response are hinged on their conclusion that oil will float and will not sink:
MS. KYLE: Oh, was it? Okay. I will then definitely rephrase because I don’t want to be contradictory.
So, the recovery strategies that Northern Gateway is proposing, am I correct that those recovery strategies are all premised on the assumption that the oil will float?
DR. EDWARD OWENS: They are based on the premise that the oils that would be transported from the terminal will float, with the one exception -- as I just mentioned -- where oil might make contact with shoreline sediments and therefore increase the density.65
59. Certainly Northern Gateway contends that under certain conditions, certain compounds will float. In cross-examination on February 5, 2013, Dr. Alan Maki, an oil spill response expert for Northern Gateway, testified that, “[i]t's fundamental physics that everything has a specific gravity relative to water. Water is 1.0. All the compounds we're talking about range from .75 up to .92, .93. It is an immutable fact of physics that they will float.”66 The following day, Northern Gateway entered a report into evidence, titled “Meso-scale Weathering of Cold Lake Bitumen/Condensate Blend.” The report details tests that were conducted on two diluted bitumen products. The tests were conducted in a tank, with water cascading into the tank, and fan emulating wind conditions (3 knots). The water
63 E9-21-09 - Federal Government Participants’ Response to IR 1.8.2.6 from Gitxaala Nation, at adobe page 60. 64 E9-39-2 – Environment Canada – Technical Review of Enbridge Northern Gateway Spill Modelling Studies and Related Environmental Consequence Analysis, at adobe page 6. 65 International Reporting Inc. – OH-4-2011 Hearing February 18, 2013, Vol. 138, at paras 8227-8229. 66 International Reporting Inc. – OH-4-2011 Hearing February 5, 2013, Vol. 133, at para 3016. (A52189) 19
temperature was approximately 15o Celsius, with a UV light intensity resembling a bright sunny June day in Ottawa.67 At the end of both tests, droplets of oil were reported as floating in the water column. The weathered oil in the tests had an ultimate density that approached, but did not surpass, that of water.68
60. It is clear, however, that these studies were not attempts to simulate ocean conditions. In cross examination on February 8, 2013, Ms. Karen Campbell, for the Coalition, asked questions regarding whether the study was realistic for the CCAA and OWA meteorological conditions. Specifically, she asked whether the UV exposure levels were higher than one would see in the North Coast.69 In response, Mr. Randy Belore for Northern Gateway stated that the light was more intense, but they tried to adjust its duration to match a more typical day. Ms. Campbell also asked about whether the water temperature and wind speeds were representative of the conditions in the OWA and the CCAA.70 The Northern Gateway witnesses generally responded that the goal of the study was not to attempt to simulate the conditions of the ocean, but rather, to look at a long-term behaviour of the product, to see how it would behave under motion, and to show what happens with the strict weathering of diluted bitumen.71
61. Furthermore, Northern Gateway’s own evidence includes a notable exception. Mr. Owen McHugh noted, with respect to oil mixing with sediment, that there can be oil and sediment interactions, specifically in a nearshore beach environment, where larger sediments such as sand can mix with the oil, where a small portion of the oil can become submerged and then settle.72
62. The potential for the diluted bitumen product to sink becomes more considerable, given Environment Canada’s evidence. In its written evidence Environment Canada notes that Northern Gateway’s response model does not account for sinking oil or for oil-suspended particulate matter interactions.73 Further, in Environment Canada’s technical review, it notes that the ecological risk assessment studies outlined in Northern Gateway’s application are one dimensional, as opposed to a three dimensional process, which the project requires.74 The review notes that the approaches used to model oil droplet formation and oil sedimentation in the MWQM (Marine Water Quality Model) are not based on the state of knowledge.75 Environment Canada explicitly states
67 B193-2 – Meso-scale Weathering of Cold Lake Bitumen Condensate Blend, at adobe pages 1 and 4. 68 B193-2 – Meso-scale Weathering of Cold Lake Bitumen Condensate Blend, at adobe page 15. 69 International Reporting Inc. – OH-4-2011 Hearing February 8, 2013, Vol. 137, at para 6420. 70 International Reporting Inc. – OH-4-2011 Hearing February 8, 2013, Vol. 137, at paras 6422 and 6430. 71 International Reporting Inc. – OH-4-2011 Hearing February 8, 2013, Vol. 137, at paras 6445 and 6448. 72 International Reporting Inc. – OH-4-2011 Hearing February 8, 2013, Vol. 137, at para 6489. 73 E9-6-32 – Environment Canada Written Evidence, at adobe page 20. 74 E9-39-2– Environment Canada – Technical Review of Enbridge Northern Gateway Spill Modelling Studies and Related Environmental Consequence Analysis, at adobe page 14. 75 E9-39-2– Environment Canada – Technical Review of Enbridge Northern Gateway Spill Modelling Studies and Related Environmental Consequence Analysis, at adobe page 14. (A52189) 20
that Northern Gateway underestimated the oil sinking and oil-sediment interactions in the provided scenarios.76
63. In response to an information request from the Coastal First Nations, Environment Canada noted that if diluted bitumen sinks, recovery and mitigation options are limited.77
64. Perhaps most significantly, Member Mathews asked several questions to a panel of scientists who advised that they had witnessed sunken oil, experienced the extraordinary recovery strategies required and the limits to those strategies, and were able to discuss the extremely slow degradation rate of sunken oil once it reached the oxygenless sea floor.
MEMBER MATTHEWS:
...
Based on your experience in terms of whether it would be lab work or field work or -- we heard about ground truthing earlier -- have any one of you ever seen sunken oil?
Based on your experience, whether it be in the lab or in the field or at an actual spill and have you seen sunken oil?
Go ahead, whoever wants to answer.
DR. JEFFREY SHORT: Yeah, I have.
MEMBER MATTHEWS: Yeah, sure. Go ahead, Dr. Short.
DR. JEFFREY SHORT: I was loaned out by the U.S. Government to DFO, Canada’s DFO, in the Wabamun spill. There was sunken oil there and my job was to quantify how much.
MEMBER MATTHEWS: Okay.
DR. ROBERT SPIES: I worked very extensively in natural petroleum seeps in Santa Barbara Channel and there was quite a bit of sunken oil all over the bottom of the Santa Barbara Channel that a large fraction probably came from oil that was initially floating but then weathered and sunk.
MEMBER MATTHEWS: Yup.
76 E9-6-32 – Environment Canada Written Evidence, at adobe page 20. 77 E9-21-06 – Federal Government Participants’ Response to IR 1.3.12c from Coastal First Nations, at adobe page 52 (A52189) 21
DR. ROBERT SPIES: And it had a very long half-life. It could be thousands of years on the bottom.
Also, I’ve done some literature reviews of oil effects and there are a number of spills around the world where I haven’t -- I wasn’t there personally. There’s a good established record in the peer-reviewed literature that there can be sunken oil, depending on the circumstances.
MEMBER MATTHEWS: Okay.
DR. ROBERT SPIES: The Tsesis oil spill and, in 1969, the Baltic and the Amoco Cadiz spill in Brittany, France in 1978 are two examples.
DR. CYNTHIA BEEGLE-KRAUSE: So I've given advice to the U.S. Coast Guard on three sunken oil spills --- 78
65. Dr. Beegle-Krause recounted an experience she had on a recovery team to locate and retrieve three million gallons of slurry oil after Hurricane Katrina sank an oil barge:
DR. CYNTHIA BEEGLE-KRAUSE:
...
In -- after the -- after Hurricane Katrina, there was an accident with a barge that was holed by hurricane debris that contained a cargo of slurry oil. Slurry oil is denser than seawater, and so it was a three-million-gallon release of slurry oil into the bottom on the offshore.
And so I was part of the trajectory team as well as the field survey in terms of how to find the oil.
She described the extraordinary process of divers using hoses to vacuum the sunken oil, and then losing the oil when the wind shifted.
There were attempts at recovery. The recovery was done by divers with hoses. It was a very complex and expensive proposition in terms of the divers could only go out when the weather was good enough. There was an extensive mobilization period, two divers in the water, two divers in rescue positions at all times.
Divers can only work four hours a shift and it was deemed truly untenable, even though this is a low-viscosity oil.
And then, there was a significant wave -- wind event and we lost track of the oil.
78 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013, Vol. 175 at paras 28696 – 29710. (A52189) 22
Dr. Beegle-Krause also described a recovery experience in the Port of Philadelphia and the complexity of recovery given the need to reopen the nuclear power plant to heat the city.
There was an accident in Philadelphia, Port of Philadelphia, with the Athos I, which was -- came into port and the bottom of the tanker was holed by an uncharted obstruction. ....
So that was a heavy Brazilian crude, and so there was oil at the surface as well as the heavier oil that was travelling along the bottom in the Delaware River.
Now, this I find a really interesting case. So for the sunken oil, it's very difficult to track. We were -- they were dragging sorbents. They were putting buoys with tethered sorbents to try and track it because, early in the spill, a nuclear power plant had water intakes and they had detected tar balls on their screens and so had done a controlled shutdown.
And one of the things that happens in spills is it's easy to turn something off and it's easy to close a fishery. It's very hard to open them again. And so there was a lot of work done in terms of trajectory forecasting and observations in terms of when the significant amount of oil had gone past and it would be safe to reopen the power plant.
Also, during these operations for cleaning, the Port of Philadelphia was closed. It was November. It was cold.
The tanker -- the container ships were all waiting outside and so there was -- there was significant concern that people were going to run out of heating oil and food in the Greater Metropolitan area. And so there was a lot of work done in terms of how to plan, how to stage, how to be able to bring aspects of the port to reopen.
She then went onto describe an oil recovery in Puerto Rico where the oil mixed with the sand.
Then there was another spill which others in NOAA Office of Response Administration had worked on in Puerto Rico where the spill came into the beach. It was mixed with sand and so it sank. And then, during the heat of the day, it would -- the sand would fall through. It would rise back up to the surface. It would come back to the beach. And this process repeated a number of times.
(A52189) 23
So oil often doesn't sink except when you put a rock on it or you mix it with sediment, and then you can have the oil reappear due to the separation of the sediment and the oil.79
66. Member Mathew then asked about the possibility of the separation between condensate from bitumen and whether the bitumen would sink.
MEMBER MATHEW: Can you separate condensate from bitumen and have bitumen sink, or… ?
What actually -- what's the material that actually sinks in the water column?
DR. JEFFREY SHORT: Well, for a material like dilbit where you have a relatively heavy bitumen product mixed with a relatively light condensate or diluent, there's an evaporation curve that's -- almost looks like a rectangle in the sense that it's initially very rapid and then, after some point, it reaches a sharp knee, almost an inflection point, and after that, it's a lot slower.
The very rapid phase consists of largely removing most, if not all, of the -- well, most of the diluent.
Subsequent -- subsequently, you're removing the lighter fractions of what were present in the bitumen itself along with whatever's left of the diluent.
So by the time you get to that, what's sinking is initially a mildly weathered form of the bitumen.
MEMBER MATTHEWS: So your suggestion is that it's -- bitumen is the material that's actually sinking?
DR. JEFFREY SHORT: Yes.80
67. Member Mathew then followed up with the question as to how large or small sinking oil particles would be and how long it would take to sink.
MEMBER MATHEW: And what would that -- what would they consist of? Would they be little droplets or would they be big balls or would they be pancakes, or what actually falls?
What -- if we were to see oil sinking, what would it -- what would we see?
DR. JEFFREY SHORT: Well, it could be any of the above depending on the particular circumstances of what happens prior to release.
79 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013, Vol. 175 at paras 28714 to 28727. 80 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013, Vol. 175 at paras 28732 to 28739. (A52189) 24
And it could be all of them at the same time, but in different places. So you could have, as example, in the Wabamun spill, you had -- they called them “tar logs” and they were big long, largely five, six, seven eight diameter or larger cylinders -- cylindrical kind of masses of product that sank en masse. Or you can -- if it has dispersed a little bit into smaller parcels of oil and then those weather, well, then, those could sink.
So it just all depends on how -- what the sea state is, what the weather has been -- what the wind has been and so forth at the point of release and then afterwards.
MEMBER MATTHEWS: So how long would it take for -- I don't -- we can't say there's perfect conditions or ideal conditions or whatever.
I'm not sure what conditions but, typically, how long would it take for a droplet to sink versus a tar ball, let's say, if we go with the assumption that it's a bitumen material?
How long would it take to sink in, say, 100 metres of water, let's say?
DR. CYNTHIA BEEGLE-KRAUSE: It really depends on the turbulent energy in the area.
Through a very quiet water, you can sink very slowly. If you've got a lot of mixing and it's continually brought up, you can have that as well.
So it really depends on the geographical area that you're in.81
68. In relation to sunken oil, Dr. Beegle-Krause explained that once oil has sunken to the sea floor, the lack of oxygen severely reduces the rate of degradation.
MEMBER MATHEW: Now, it was mentioned that once -- once the sunken oil, let's call it, reached the bottom, that it would eventually degrade and I think you mentioned that the asphaltene content is an inhibitor or limits the degradation of it?
Is that -- would that apply to the substrate or the floor of the water as well -- of the sea as well or ---
DR. JEFFREY SHORT: The asphaltenes and resins are one of the most difficult fractions of the oil to -- from a microbial organisms to degrade, so they’re very resistant to the -- allocyclic hydrocarbons are also very resistant to degradation and those are abundant in the bitumen as well.
81 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013, Vol. 175 at paras 28741 – 28756. (A52189) 25
Once it hits the sea floor, it’s -- if it gets -- if something mixes it into the -- below the very surface of the sediments, you can run out of oxygen real quick. Once you run out of oxygen then microbial processes slow way, way down and that leads to long-term, being scores of two centuries -- scores of years to centuries.82
69. Member Mathews last question dealt with the percentage of oil that actually sinks.
MEMBER MATTHEWS: Just one last question I guess. Based on the examples that you just mentioned, roughly what percent of the oil spilled made it to the bottom?
...
DR. CYNTHIA BEEGLE-KRAUSE: So in the DBL 152, all of it except for some surface sheens in the initial spill of it. So all 3 million gallons.
I haven’t seen a mass balance for the spill in Philadelphia so I really can’t answer on that. And then the small spill of Orimulsion, from what the Coast Guard reported they felt that all of the bitumen had made it to the bottom and that it was just only surface sheens at the top and the photographs I saw represent that as well.83
5.4. Inadequate information on response time in the Open water Area
70. Northern Gateway has spoken at lengths about the spill response in the confined channel area. But these plans do not apply equally to the open water area. Northern Gateway has not secured any locations for their proposed major spill response centres from where first responders would travel from to respond to an oil spill. There are no firm details as to what equipment a spill response centre would contain or where secondary and tertiary centres would be located or what equipment would be in place. There is no clarity as to the response times in the open water area. Overall, Northern Gateway simply hasn’t conducted the detailed work to address the potential adverse impacts resulting from responding to spills in the open water area.
71. In the open water environment, Northern Gateway, confirmed that travel time would be added to the enhanced area response time of six to twelve hours, Northern Gateway also advised that the response time in certain open water areas would be within 12 hours but then Northern Gateway advised the 12 hour
82 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013, Vol. 175 at paras 28758-28761. 83 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013, Vol. 175 at paras 28771-28777. (A52189) 26
estimate would be variable, depending on weather, and finally that there would be no mapping of the response times within the open water area.84
72. During cross examination by Ms. Fong of Northern Gateway's expert panel on February 23, 2013, Mr. Owen McHugh advised that the details of the spill response centres have not been settled.85 Mr. McHugh explained that the response centres do not have to be on land, and in fact can be set up on barges in open water. There have been no decisions as to what equipment each major spill response centre will have. Through this, Northern Gateway asserts a capacity to respond to a spill for 36,000 cubic metres.86 It is worth noting that a Very Large Crude Carrier, a Project-related tanker, has the capacity to carry 16,000,000 cubic meters of oil product.87
73. Whether response teams are based on land, or on barges, Northern Gateway’s failure to provide plans for the open water area encompasses a serious failing to address uncertainties presented by weather. Heiltsuk fishermen have long spoke about the treacherous waters in the Open Water Area:
For example, Chief Gary Housty, a Heiltsuk fisherman with over 50 years of commercial fishing experience, noted that the Open Water Area includes both storm force winds and incredibly strong tides.88
Another example is Chief Peter Mason, who has over 50 years of experience as a commercial fisherman in the Open Water Area. Chief Peter Mason’s experience fishing demonstrated the navigational hazards the Open Water Area presents:
The biggest enemy of tankers and other boats that are -- that attempt to navigate this proposed marine tanker route are: north winds, northwest winds, southeast winds, strong and extreme tidal actions compounded by the ocean's rock pinnacles, shallow waters and subsequent ocean swell conditions.
When Peter fished in the Goose Island area, he observed that after a storm it took two days for the ocean conditions to settle down enough to be able to resume fishing. Goose Island is located in the open Pacific Ocean.
On the other hand, he observed that, after a storm, the Hecate Straits area's tidal action is so severe that the build-up of a big ocean swell
84 International Reporting Inc. – OH-4-2011 Hearing February 23, 2013 Vol. 143 at paras, 15540-15444; 15457; and 15464-15465. 85 International Reporting Inc. – OH-4-2011 Hearing February 23, 2013 Vol. 143 at paras 15479-15500. 86 International Reporting Inc. – OH-4-2011 Hearing February 23, 2013 Vol. 143 at para 15488. 87 B3-26- Application Volume 8B, adobe page 22. 88 International Reporting Inc. – OH-4-2011 Hearing April 3, 2012 Vol. 37 at para 27306. (A52189) 27
settles down in a matter of a few hours because of the fast current and the wind conditions that push them out to sea.
Peter has also experienced what he calls freak swells that come from extreme weather conditions, and he has seen these up to 30 feet in height. They appear to be seemingly coming from nowhere evident and can cause havoc in navigation.89
Certainly these are factors that may also impact the feasibility of having barge- based response teams, as well as their ability to perform under all conditions. The Joint Review Panel must have regard to the feasibility of mitigation measures under all conditions that may occur in the open water area, but Northern Gateway has not provided sufficient information or planning in that regard.
5.5. Insufficient Geographic Response Plans for the OWA
74. In cross examination, Northern Gateway's experts admitted that their geographic response plan commitment is focused on the Confined Channel Assessment Area and the shipping routes, with a small, undefined portion within the open water area.90
75. When asked if Northern Gateway would include Bella Bella in its geographic response plans, Owen McHugh, a witness on Northern Gateway's spill response panel essentially said “no,” noting that Northern Gateway's commitment is along the shipping route itself, and areas that are of the "highest risk associated with the proposed tanker routes."91
76. A judgment as to “highest risk” of course begs the question of the adverse environmental impacts that may result from a spill in the open water area, and what that may mean for areas around places like Bella Bella. As in the matter of spill modeling for the open water area, Northern Gateway’s focus is very limited. For example, Northern Gateway has committed to conducting three year harvesting studies, but will fund only those groups proximate to the Confined Channel Assessment Area.92 For areas outside the confined channel assessment area, Northern Gateway intends to rely on documents such as the provincial environmental sensitivity atlases.93
89 International Reporting Inc. – OH-4-2011 Hearing April 3, 2012 Vol. 37 at paras 27344-27347. 90 International Reporting Inc. – OH-4-2011 Hearing February 25, 2013, Vol. 144 at para 15579. 91 International Reporting Inc. – OH-4-2011 Hearing February 25, 2013, Vol. 144 at paras 15585 and 15586. 92 International Reporting Inc. – OH-4-2011 Hearing February 25, 2013, Vol. 144 at paras 15652 and 15655. 93 International Reporting Inc. – OH-4-2011 Hearing February 25, 2013, Vol. 144 at para 15655. (A52189) 28
77. No plan in place yet for maintaining the confidentiality of fishing and marine harvesting sites.94 Spill response planning is part of a five-year process.95
78. Northern Gateway, while looking to address the resources that First Nations use, has not assessed the impacts that an accident or malfunction will have on a specific First Nation.96
6.0 Insufficient information about the Fisheries Liaison Committee
79. As the Project contemplates the passage of 225 supertankers through the Central Coast each year, there is a significant potential for conflict between commercial, food social and ceremonial (“FSC”), and recreational fisheries. Commercial fisheries are often only open for limited duration, and the timing of the fishery opening can be very short.97 Because of this, it is important for fishers that they can fish during the fishery openings. Fisheries can also occur in the Project’s proposed shipping lane.98
80. Northern Gateway has proposed a Fisheries Liaison Committee (FLC), which is to facilitate effective communication with commercial, FSC, commercial- recreational and recreational fishers, in order to address potential environmental effects of the Project on marine fisheries.99
81. Northern Gateway contemplates that the FLC will establish mitigation measures which include scheduling tanker transits to limit conflict with openings for the salmon fishery, and determining if tankers can be re-routed at specific locations to limit conflicts with trawling, gill netting, or hook-lines.100 Northern Gateway relies on the FLC to schedule fishing activities in specific locations to limit conflicts with tankers, so that the cumulative effects on marine fisheries will not be significant.101 While Northern Gateway relies on the FLC as a means to mitigate conflicts between fishing vessels and the Project tanker traffic, witnesses in cross-examination revealed the lack of consideration that Northern Gateway has given to date regarding the FLC’s mandate and authority. For example:
MR. McCORMICK: Madame Clerk, if we could scroll down just slightly on the page that’s currently displayed.
94 International Reporting Inc. – OH-4-2011 Hearing February 25, 2013, Vol. 144 at para 15660. 95 International Reporting Inc. – OH-4-2011 Hearing February 25, 2013, Vol. 144 at para 15684. 96 International Reporting Inc. – OH-4-2011 Hearing February 18, 2013, Vol. 138 at para 8852. 97 International Reporting Inc. – OH-4-2011 Hearing December 11, 2012, Vol. 112 at para 10720. 98 International Reporting Inc. – OH-4-2011 Hearing December 11, 2012, Vol. 112 at para 10720. 99 B3-34 – Application Volume 8B, at adobe page 31. 100 B3-34 – Application Volume 8B, at adobe page 59. 101 B3-34 – Application Volume 8B, at adobe page 69 and 69. (A52189) 29
I’ll draw your attention to the second sentence of the paragraph that we see displayed in the middle of the page. It indicates:
“The framework for a FLC would have participating members contribute in good faith to discuss construction and operational schedules, identify sensitivities and concerns, identify protocols for compensation for lost or damaged gear, seek mutually agreeable solutions to minimize and/or avoid conflicts, and optimize communication [amongst] participants.”
Noting that this response indicates the framework will provide form for good faith discussions, will the implementation of any mitigation measures identified by the Fisheries Liaison Committee also be governed by good will or will they take the form of firm, enforceable commitments?
--- (A short pause/Courte pause)
MR. JOHN CARRUTHERS: Again, I believe the Fishing Liaison Committee would be a way to inform each other and come to work collaboratively to come to a solution that’s satisfactory to the parties involved. And that decision would be implemented. People would come to a consensus of what they would do to mitigate potential conflicts and they would enact those mitigations.
MR. PAUL ANDERSON: And our understanding is that’s not any different than what we’re seeing on the Atlantic Coast with the committees that we’ve described previously. They’re not enforcement based; they’re voluntary in nature.
They’ve been extremely successful from all accounts and we would not see any different model working in this situation and we wouldn’t see any lack of success in this situation either.
MR. McCORMICK: And noting that Northern Gateway has acknowledged that there will be conflicts between project activities and fisheries in the event of a conflict that cannot be resolved internally by the Fisheries Liaison Committee, will Northern Gateway submit to a mutually acceptable independent third-party decision-maker to impose a binding resolution?
MR. JOHN CARRUTHERS: What we acknowledge is that active collaboration is needed to maximize the value of the Fishing Liaison Committee and as have talked about the people would come to mutually agreeable decisions and those would be implemented.102
102 International Reporting Inc. – OH-4-2011 Hearing December 13, 2012 Vol. 114 at paras 13413-13420. (A52189) 30
This exchange demonstrates that though Northern Gateway envisions the FLC as the primary mitigation measure for dealing with conflict between tankers and other marine traffic, Northern Gateway does not intend to institute any measures to ensure that the decisions of the FLC carry any weight. Further, when asked if Northern Gateway would commit to funding process-related costs associated with loss or damage to First Nation FSC fishing gear, witnesses for Northern Gateway noted that the FLC would be developing such protocols.103
82. Northern Gateway also noted that the FLC would operate by consensus:
MR. RALSTON: So if Northern Gateway did not agree to implement a recommendation, such as for compensation, they would have a veto over that implementation. That's my understanding. Would you agree?
MR. JOHN CARRUTHERS: Again, we're talking about a consensus decision here. So Northern Gateway would be part of those decisions and then there would be implementation if the consensus was of a proactive mitigation.104
A requirement of consensus in a group with potentially competing views essentially creates the ability of any one party in the group to veto a decision. This has the potential consequence of rendering the FLC’s impact hollow.
83. Northern Gateway witness testimony indicates a clear reliance on the conceptually flawed FLC as the primary tool to address and mitigate any conflict caused by the significant tanker traffic associated with the project. During cross- examination, however, witnesses for Northern Gateway explained that no funding had been set aside for the FLC.105
7.0 Severe adverse impacts on aboriginal rights and interests
84. The limits of the information before the Joint Review Panel all indicate a Project for which the Crown has not properly consulted. The Project involves a significant potential for – indeed, a presumed result under the precautionary approach – for severe adverse environmental impacts, and as a consequence, severe or catastrophic adverse impacts on Heiltsuk rights and interests.
85. Witnesses for Northern Gateway agree that an oil spill has the potential to have long-term adverse impacts. In the context of a discussion regarding Northern Gateway’s approach to spill modelling Mr. Jeffery Green, a witness for Northern Gateway, noted the following:
103 International Reporting Inc. – OH-4-2011 Hearing December 13, 2012 Vol. 114 at para 13470. 104 International Reporting Inc. – OH-4-2011 Hearing December 15, 2012 Vol. 116 at paras 16584-16585. 105 International Reporting Inc. – OH-4-2011 Hearing December 15, 2012 Vol. 116 at para 16427. (A52189) 31
Given the right weather conditions, the right proximity of environmental resources, the effects, we believe, most certainly will be adverse. And depending on just how the oil interacts with different resources, there’s a high likelihood that effects on certain VECs would be significant.106
The Project creates the risk of severe impacts to Heiltsuk fisheries, Heiltsuk ability to confirm its Aboriginal rights and title, and Heiltsuk culture.
Heiltsuk interest in herring
86. The Project presents the risk of severe, irreversible consequences to Heiltsuk’s herring stocks. Herring represent an integral component of Heiltsuk culture, diet, and well-being.
87. Prior to contact with non-Aboriginal peoples, Heiltsuk participated in an elaborate system of trade and barter with other First Nations along the Pacific Coast. The existence of pre-contact trade and barter of herring spawn-on-kelp, recognized in Gladstone. The Court accepted that the Heiltsuk have traditionally engaged in intertribal trade of spawn-on-kelp at a magnitude in the order of several tonnes and this practice remains integral to Heiltsuk’s distinctive culture.107
Impact of oil on herring
88. The Application notes the important ecosystem function of herring. Herring are part of a complex food web, as spawn, eggs, juveniles and adults. Herring form a large part of the diet of a wide variety of piscivorous fishes, mammals, and marine birds.108
89. An oil spill presents the potential to cause significant adverse impacts to herring. The physical interaction of oil and herring eggs can result in smothering, which would occur in approximately 1/400th of the time required by the TDR’s calculations submitted into evidence by Northern Gateway.109 When giving oral evidence on behalf of Heiltsuk Nation, Dr. Vigers concluded:
The risk assessments provided by the Enbridge consultant are quite inadequate in projecting the significant physical risks and impacts of oil spills, slicks, sheens, and entrainment on vital intertidal ecology and fisheries identified in my presentation.110
Quite clearly, an oil spill has the potential to result in toxic impacts to herring, and also the potential to lead to smothering of fish eggs, leading to toxic effects.
106 International Reporting Inc. – OH-4-2011 Hearing February 7, 2013 Vol. 136 at para 4519. 107 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 Vol. 39 at para 29026, evidence of Chief Councillor Marilyn Slett. 108 B3-39- Application Vol. 8C, at adobe page 27. 109 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 Vol. 64 at para 11799. 110 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 Vol. 64 at para 11838. (A52189) 32
90. An oil spill event presents a risk of significant adverse impacts to the Central Coast herring population on which Heiltsuk rely. Throughout the environmental assessment, the Panel has been presented with conflicting evidence regarding the lasting impacts of an oil spill on herring populations. The most pervasive example is whether or not the Exxon Valdez Oil Spill led to the collapse of the herring fishery in Prince William Sound.
91. Northern Gateway concludes that the impacts to herring following EVOS were minimal.111 Speaking to the consequences of the Exxon Valdez oil spill, Dr. Walter Pearson, an expert for Northern Gateway, noted there were localized effects on herring eggs and the development of the embryos contained in the eggs, but stated that the following year, there were no effects on the egg.112
92. Northern Gateway’s evidence on this issue is contested by federal government evidence, as well as evidence tendered on behalf of intervenors.
93. In a response to information request 4.1(a) of the Gitga’at, Fisheries and Oceans Canada (DFO) noted that following the Exxon Valdez oil spill, there were detrimental short term consequences to herring at all life stages.113 In cross- examination, Mr. Michael Engelsjord, a witness for the federal government noted that following the Exxon Valdez spill, there were long-term detrimental effects to fish eggs as the result of chronic exposure to sequestered oil that can persist for years after a spill.114
94. Dr. Robert Spies, an expert for Gitxaala Nation, provided additional evidence suggesting that the conclusion that EVOS did not lead to the herring collapse is not supported in the scientific community. Dr. Spies noted that the divergent conclusions regarding spill damages and recovery were caused by both differences in study design and in standards of proof.115 Dr. Spies noted that Exxon would not accept much less than a complete causal chain linking spill oil to its ultimate effects, while the governments used a weight-of-evidence standard.116 Dr. Spies noted that establishing a complete causal chain is difficult of practically impossible to establish in the wake of accidents in poorly characterized ecosystems, such as the Prince William Sound ecosystem.117
111 B3-39- Application Vol. 8C, at adobe page 33. 112 International Reporting Inc. – OH-4-2011 Hearing February 7, 2013 Vol. 136, at paras 5574-5575. 113 E9-21-08- Federal Government Participants` Response to Information Request No 1 from Gitga’at First Nation, 4.1(a) at pages 40 and 41. 114 International Reporting Inc. – OH-4-2011 Hearing April 23, 2013 Vol. 168, at para 18364. 115 D72-32-08- Gitxaala Nation- Report on Expert Opinion on Effects from Petroleum Spills for Gitxaala, at page 17. 116 D72-32-08- Gitxaala Nation- Report on Expert Opinion on Effects from Petroleum Spills for Gitxaala, at page 17. 117 D72-32-08- Gitxaala Nation- Report on Expert Opinion on Effects from Petroleum Spills for Gitxaala, at page 17. (A52189) 33
95. On May 1, 2013 Gitxaala Nation presented its panel on environmental effects for cross-examination. Dr. Robert Spies was cross-examined regarding his written evidence on the effects of the EVOS on herring. Dr. Spies testified that it would be incorrect to characterize the scientific community as having eliminated oil spills as a direct cause of the herring population crash.118 Dr. Spies noted that in 1989, when the eggs and developing larvae were “very much affected” by the oil, there could have been on the surviving embryos, a depression of immune system function.119 Dr. Spies stated that if these young herring had been exposed to some of those pathogens, when they joined the adult population, they could have carried those pathogens back into the adult population.120 Dr. Spies noted that this possibly connects the 1989 spill to the 1993-1993 population crash.121
96. Dr. Spies noted that if one assumes that the EVOS had an effect on herring, then he cannot necessarily agree with Northern Gateway’s conclusion that a marine environment will naturally restore itself to its pre-spill environmental state.122 Dr. Spies further noted that the effects of the impact of a spill may set up secondary effects within the ecosystem so that the ecosystem itself does not return to those former conditions.123 While there is uncertainty regarding the cause of the herring crash, herring is a potential specific example of the destruction of an ecosystem impact.124 Assuming that the oil is the cause is a reasonable and precautionary assumption.125
97. Member Batemen asked whether the Panel should draw the conclusion that the oil spill in EVOS was not the cause of the herring population decline. Dr. Spies replied that there is significant scientific doubt as to what total factors were involved in the crash of the herring in 1993/1994 and that there is still significant scientific opinion that the spill may have played some role in the crash.126
98. Dr. Vigers, who provided uncontested evidence on behalf of Heiltsuk Nation, testified that the assessment of herring, the Technical Data Report (the “TDR”) submitted by Northern Gateway is inadequate. The TDR is inadequate because the risk assessments employ a primarily toxicity-based approach. Dr. Vigers notes that while oil has some toxic properties, most of the impacts on herring are the result of physical interactions.127
118 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at para 28287. 119 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at paras 28289-28290. 120 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at paras 28290-28291. 121 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at para 28292. 122 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at para 28617. 123 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at para 28621. 124 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at paras 28625 and 28627. 125 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at para 28627. 126 International Reporting Inc. – OH-4-2011 Hearing May 1, 2013 Vol. 175 at paras 28665-28666. 127 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 Vol. 64 at paras 11795-11799. (A52189) 34
Impacts to an entire stock
99. In its application, Northern Gateway notes that there are five major spawning areas in British Columbia. Dr. Walter Pearson, in the February 7, 2013 cross- examination by Ms. William-Davidson, notes that there are localized stocks in British Columbia.128 Dr. Pearson also asserted that the likelihood of an oil spill having a direct impact on the entire stock of Haida Gwaii herring is “vanishingly small.”129
100. Again, Northern Gateway’s evidence is not supported. In the DFO’s response to the Gitga’at information request 4.1 it notes that a wintertime spill on the lower east coast of Haida Gwaii could impact the whole Haida Gwaii herring stock. Further, a spill at the Browning Entrance Area, or North Porcher Island, could impact much (or all) of the Prince Rupert District herring stock.130 The entire Central Coast stock could be severely impacted or lost in the event of a spill.
Socio-economic impacts from damage to herring stock
101. Beyond the potential for significant, irreversible impacts to the herring stock, an oil spill carries the likely consequence of an adverse socio-economic impact to Heiltsuk Nation.
102. Dr. Vigers testified that:
Oil may also impart undesirable colour, taste and odour qualities to herring spawn that render the spawn unusable for human consumption or commercial sale. Not very desirable for spawn on kelp that is consumed almost exclusively in the discerning Japanese market, where it's known as kazunoko kombu.131
103. The commercial consequences of an oil spill were realized following EVOS, when the herring fishery was closed for an entire season.132 The commercial loss is inextricably linked to the socio-economic loss. In addition to resource closures, the perception that a food resource has been tainted can significantly extend the period of time that a community will refrain from harvesting and consuming its traditional foods. Following EVOS subsistence households reported that they limited their harvesting activities due to fear that these ocean foods, historically a central focus of their culture, might now be poison.133
128 International Reporting Inc. – OH-4-2011 Hearing February 7, 2013 Vol. 136 at para 5653. 129 International Reporting Inc. – OH-4-2011 Hearing February 7, 2013 Vol. 136 at para 5653. 130 E9-21-08- Federal Government Participants’ Response to Information Request No 1 from Gitga’at First Nation, 4.1 pages 43-44. 131 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 Vol. 64 at para 11802. 132 B3-39- Application Vol. 8C, at adobe page 35. 133 D85-3-19- Heiltsuk Tribal Council`s Written Evidence, Appendix S, at page 11. (A52189) 35
104. Heiltsuk Nation would be uniquely impacted by the adverse effects of an oil spill on herring. To the Heiltsuk Nation, herring represent so much more than a source of food and a source of economic livelihood. Herring represent Heiltsuk Nation’s resilience, determination, and commitment to its community’s well-being and the well-being of the generations of Heiltsuk that will follow.
Adverse Impact on Seaweed
105. An oil spill has the potential to adversely impact seaweed. Seaweed, or łqst, is a traditional food consumed by Heiltsuk, and represents an integral part of the Heiltsuk diet.134 Seaweed’s importance to Heiltsuk diet cannot be overemphasized. In a report prepared for the Heiltsuk Tribal Council, John Pritchard and Brian Robertson concluded that, of Heiltsuk households studied, approximately 76% consumed seaweed.135 Seaweed provides an excellent source of calcium, magnesium, iodine, and other trace minerals.136 Heiltsuk maintain their connection to their traditional territory by the harvesting of seaweed in unique harvesting areas.137
106. Rockweed, edible seaweed found in the OWA was severely impacted following the EVOS. The Application notes that in the event of a diluted bitumen oil spill, diluted bitumen which moves to the shoreline can be expected to coat rockweed.138 The Application notes that as of 1997, eight years after EVOS, rockweed had not yet fully recovered on shores oriented towards direct sunlight.139
107. The loss or tainting of seaweeds would have a significant adverse effect on Heiltsuk health and would have an additional impact on Heiltsuk’s ability to carry out an important component of the Nation’s cultural heritage.
Impacts to Clams
108. Northern Gateway’s Application does not assess the impact of an oil spill on clams in detail. The Application notes that analysis of hydrocarbon contamination of four species of infaunal clams after EVOS demonstrated widespread and long- lasting effects in the intertidal system.140 The Application notes that although the contaminant levels in mussels and clams declined over time, pools of partially
134 International Reporting Inc. – OH-4-2011 Hearing April 3, 2012 Vol. 37 at para 27091. 135 D85-5-09- Heiltsuk Tribal Council’s Written Evidence- Intro Place of Traditional Foods in Contemporary Heiltsuk Diet, at page 3. 136 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 Vol. 38 at para 28257. 137 International Reporting Inc. – OH-4-2011 Hearing April 3, 2012 Vol. 37 at para 27178. 138 B3-42- Application Vol. 8C, at adobe page 51. 139 B3-42- Application Vol. 8C, at adobe page 52. 140 B3-22- Application Vol. 7C, at adobe page 60. (A52189) 36
weathered oil remained at least until 1996 in the sediments below and among the mats of mussel byssus, cobble and fine sediments.141
109. Heiltsuk consume clams as a component of their traditional diet, and also rely on clams for economic benefit. Heiltsuk have been engaged with DFO in commercial clam joint management since 1993.142 Since 1993, the Heiltsuk clam fishery has produced landings, which have varied in value between $111,000 and $385,000.143 An oil spill would have a significant adverse effect on this culturally and economically valuable product.
Impacts to Salmon
110. An oil spill could have a significant adverse impact on salmon. Like clams, salmon represent an integral component of Heiltsuk diet, Heiltsuk culture, and Heiltsuk economy. In Mr. William Housty’s oral evidence, he noted that salmon were created for the health and well-being of his ancestors. The salmon were created with the intention that they would return year after year so that Heiltsuk people could be nourished. The salmon fishery has persisted thousands of years and now benefits Mr. Housty’s generation.144
111. Heiltsuk fish for salmon in Food Social and Ceremonial (“FSC”) fisheries, and are currently engaged in several initiatives to increase their salmon fishery, including the Allocation Transfer Program and the Pacific Integrated Commercial Fisheries Initiative.
112. Migrating salmon are at risk of exposure to hydrocarbon contamination.145 The chum stock in DFO’s fisheries management Area 8, squarely within Heiltsuk territory, remains depressed.146 Coastal sockeye stocks support First Nations FSC fisheries, and can constitute small commercial fisheries for First Nations.147
113. An oil spill during a salmon migration could have devastating impact on the stocks that Heiltsuk relies upon culturally, spiritually, and economically. As Mr. William Housty testified:
Even in my short time living here in my territory, 30 years, I’ve harvested sockeye in and around the Hauyet area. And to think about how an oil spill would affect the salmon, it would be devastating.
141 B3-22- Application Vol. 7C, at adobe page 60. 142 D85-5-29- Heiltsuk Tribal Council’s Written Evidence, at adobe page 6. 143 D85-5-29- Heiltsuk Tribal Council’s Written Evidence, at adobe page 6. 144 International Reporting Inc. – OH-4- 2011 Hearing Transcript April 4, 2012 Vol. 38, at paras 28538 and 28541. 145 B3-39- Application Vol. 8C, at adobe page 21. 146 D203-4-04- UFAWU Written Evidence, at adobe page 25. 147 D203-4-04- UFAWU Written Evidence, at adobe page 11. (A52189) 37
Further to this, an oil spill would nullify the importance of the salmon to my people and would completely disregard the importance and significance of the above origin story, thus degrading the generations and generations of people who descend from the story and who have depended upon the creation of the salmon for so long.148
114. Following the EVOS, the salmon fishery was closed for an entire season.149 As salmon is consumed nearly universally by Heiltsuk,150 even a brief closure following an oil spill would have a significant adverse impact on Heiltsuk Nation.
Impacts to FSC Fisheries
115. Project operations create a risk of significant adverse impacts to FSC fisheries that cannot be mitigated through the FLC. The testimony of Northern Gateway witnesses provides no assurance that the program is a suitable mitigation measure. The FLC has not been conceptualized in any meaningful manner. Northern Gateway’s financial commitment is also lacking. Witnesses for Northern Gateway testified that Northern Gateway would fund the operational costs of the FLC.151 Witnesses for Northern Gateway also testified that no budget has yet been allocated for the FLC.
116. Heiltsuk Tribal Council is concerned that without any authority or promise of funding the FLC represents a hollow promise, that will fail to mitigate interference between tanker traffic and FSC fisheries.
Cultural and health impact
117. An oil spill or even the potential of an oil spill presents a significant adverse effect on Heiltsuk Nation’s continued ability to pass transfer knowledge to Heiltsuk youth. Heiltsuk Nation manages its resources through responsible resource management, and through the intergenerational transfer of knowledge and values. Inherent within the principle of intergeneration knowledge is the concept of learning from one’s elders.152 If the ability to harvest sea foods is lost or restricted, even for only a few seasons, the ability to transfer this knowledge could be severely restricted.
118. The very presence of the tanker traffic in Heiltsuk territory will create a perception of risk that cannot be mitigated.
148 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 Vol. 38, at paras 28539- 28540. 149 B3-39- Application Volume 8C at page 8-35, adobe page 35. 150 D85-5-09- Heiltsuk Tribal Council’s Written Evidence- Intro Place of Traditional Foods in Contemporary Heiltsuk Diet, at page 3. 151 International Reporting Inc. – OH-4-2011 Hearing December 15, 2012 Vol. 116. 152 D85-3-14- Heiltsuk Tribal Council’s Written Evidence, Appendix N at page 9. (A52189) 38
119. In cross-examination by counsel for Gitxaala, Mr. Paul Anderson, a witness for Northern Gateway, confirmed that Northern Gateway’s conclusions about risk significance did not address adverse impacts to perceptions and spiritual values.153 Mr. Anderson agreed that if a person believes a food source to no longer be clean or suitable because of the risk posed by operation, this could have an impact on their harvesting behaviour.154 Mr. Anderson agreed that an effect of operations could be the reduced use of an area for traditional harvesting based on the perception that the use of that area as a transport zone for the large tankers degrades the quality of the area. However, Mr. Anderson testified that this result “in perception” is not quantified through an assessment conducted pursuant to the Canadian Environmental Assessment Act.155
120. Heiltsuk Nation disagrees with this interpretation of the CEAA, 2012. Subsection 5(1)(c) of the Act confirms:
5. (1) For the purposes of this Act, the environmental effects that are to be taken into account in relation to an act or thing, a physical activity, a designated project or a project are ... (c) with respect to aboriginal peoples, an effect occurring in Canada of any change that may be caused to the environment on
(i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance. (emphasis added)
Surely, a community’s belief that the imposition of supertanker traffic in their territory will result in tainting of traditional food resources is an effect related to the Project. Further, the resulting change to an Aboriginal community’s traditional harvesting practices could impact the community’s ability to practice its cultural heritage and the community’s health and socio-economic condition.
121. Dr. Maki Ikemura’s oral evidence confirms that the perception of tainted resources has significant ramifications for a community’s health and well being. Dr. Ikemura testified that following the opening of a nickel mine in Kangirsuk, Nunavik, youth and Elders advised her that the community’s arctic char started
153 International Reporting Inc. – OH-4-2011 Hearing Transcript December 14, 2012 – Vol. 115 at para 14822 (A3E3G9). 154 International Reporting Inc. – OH-4-2011 Hearing Transcript December 14, 2012 – Vol. 115 at para 14835 (A3E3G9). 155 International Reporting Inc. – OH-4-2011 Hearing Transcript December 14, 2012 – Vol. 115 at para 14839 (A3E3G9). (A52189) 39
tasting like soap or like chemicals.156 Whether or not the arctic char was tainted, the presence of the nickel mine resulted in a community perception that the traditional food product they revered was no longer healthy.
122. Dr. Ikemura’s evidence demonstrates the significant impact an oil spill can have on a community’s perception of tainted traditional foods:
A second effect would be through the loss of livelihood and the food supply for people who depend, as people here do, on fishing and seafood gathering. And this effect we know will last for years.
We know that, after the Exxon Valdez oil spill in Alaska, the amount of seafood that was harvested dropped by 75 percent and this effect lasted for many, many years afterwards because of decreased availability, but also because people were afraid to harvest because they were afraid of contamination.157
123. Coren Humchitt, a 17 year old Heiltsuk youth explained that he associates an oil spill with the tainting of animals and the environment:
The animals that I have seen and some that I have harvested with my parents and my grandmother will be tainted and some will die off because of all the poison that will be spilled into the waters and that will be trailed onto the beautiful land of the animals.158
124. For Heiltsuk Nation, preservation of marine resources represents much more than preserving a source of economic livelihood. To Heiltsuk Nation, marine resources represent an essential source of physical, cultural, and spiritual wellbeing. The Project is likely to cause a significant impact on Heiltsuk’s relationship with its marine resources.
Impacts to Otters
125. Oil spills also have the potential to adversely impact sea otters. Sea otters represent a keystone species for Heiltsuk. Sea otters, once extirpated from British Columbia’s coast due to overharvesting, have since been introduced. Sea otters maintain the diversity and productivity of Heiltsuk’s marine ecosystem, through their feeding habits, particularly through controlling the sea urchin population.159
156 International Reporting Inc. – OH-4-2011 Hearing Transcripts April 4, 2012 – Vol. 38 at para 28228. 157 International Reporting Inc. – OH-4-2011 Hearing Transcripts April 4, 2012, Vol. 38, at paras 28278- 28279. 158 International Reporting Inc. – OH-4-2011 Hearing Transcripts April 4, 2012 , Vol. 38 at para 28147. 159 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 Vol. 39, at paras 29184 and 29185, evidence of Chief Councillor Marilyn Slett. (A52189) 40
126. An oil spill represents the greatest threat to sea otters.160 An oil spill impacting the sea otters at Goose Island could have an additional impact for Heiltsuk through resulting impacts to Heiltsuk marine ecosystem.
Impacts to Whales
127. Oil spills have the potential to cause devastating impacts on whales. Whales carry an important cultural value for Heiltsuk Nation. The killer whale represents power, strength, grace, and wealth.161 Heiltsuk monitor killer whales, a species at risk, which represents a great concern for Heiltsuk from a stewardship perspective.162
128. In his oral evidence, Mr. Rory Housty testified about the importance of whales to Heiltsuk Nation:
One afternoon on our paddle back from Kwakum paddling back to Koeye, we got caught in the afternoon breeze in Fitz Hugh Sound. It was very rough and the pullers were unable to switch out for a break. Meanwhile, while paddling back to Koeye, there were humpback whales breaching in the middle of Fitz Hugh Sound. The whales breached multiple times while we were paddling back.
That summer, there were over 60 individual humpbacks identified in Fitz Hugh Sound. And as I recall, there was one humpback whale that followed the canoe the whole trip, and it breached and surfaced over 40 times. When we pulled into Safe Harbour, the humpback whale took one last dive and we did not see it again.
I tell you this because we believe our ancestors live in the wildlife, such as the killer whale and humpback whale.163
129. The Project represents significant risks to whales both through routine operations and through the potential for a spill. With respect to routine operations, Northern Gateway proposes minimizing vessel strikes with marine mammals by reducing vessel speed in the CEAA to 10-12 knots generally, and 8-10 knots in the “humpback whale core area” during May to November, unless otherwise required.164(Volume 8B, Page 10-89) Northern Gateway’s Application does not make the same commitments for the OWA. DFO’s evidence notes that about 23% of all confirmed vessel strikes causing death or serious injury to whales took place
160 B3-40 – Application, Vol. 8C, adobe page 13. 161 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 Vol. 38, at para 28578, evidence of Mr. William Housty. 162 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 Vol. 39, at paras 29319 and 29362, evidence of Mr. Frank Brown. 163 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 Vol. 164, at paras 11721-11723. 164 B3-33 – Application Vol. 8B - Marine Transportation ESA, at adobe page 22. (A52189) 41
at speeds of 10 knots or less.165 The fin whale and the humpback whale are by far the most frequently involved in ship strikes. Both are SARA-listed species.166
130. Testimony from DFO confirms that more baseline information is required in order to assess the direct and cumulative effects of Northern Gateway tankers on whales.167
131. Northern Gateway’s Application notes that there are few studies that indicate the effects of hydrocarbons on marine mammals.168 The Application notes that following EVOS, one pod of killer whales in Prince William Sound experienced long-term effects.169 In cross-examination, witnesses for Northern Gateway conceded that the long-term effects to the pod of killer-whales are not recovering.170 Northern Gateway’s witness testified that the Exxon Valdez Trustees Council’s own statements indicate that the link from that pod of killer whales’ non-recovery to EVOS exposure is uncertain.171 A review of the Oil Spill Trustee Council website, however, notes that “The losses to killer whale populations resulted primarily from the initial, acute exposures to the spill.”172
132. The Project presents risks of significant adverse environmental effects to whale species of importance to Heiltsuk. Whales represent a symbol of continuity between generations of Heiltsuk, and the Project’s presents a significant potential to kill individual whales or to decimate a pod.
Inability to date archaeological sites
133. The Project’s potential oil spill presents a significant, irreversible risk of limiting Heiltsuk Nation’s ability to effectively prove Aboriginal rights and title in the future.
134. Northern Gateway’s Application confirms that hydrocarbons can have multiple impacts on heritage resources. If hydrocarbons reach the intertidal zone or shoreline, the chemical interactions with the shorelines can limit the ability to interpret physical cultural remains.173 Following an oil spill, sites may be additionally adversely impacted by spill containment and cleanup activities. Activities like boom placement, substrate removal, bioremediation and other cleanup activities might disturb heritage resources.174 An additional unanticipated
165 E9-6-13- Fisheries and Oceans Canada and Canadian Coast Guard Written Evidence, at adobe page 26. 166 E9-6-13- Fisheries and Oceans Canada and Canadian Coast Guard Written Evidence, at adobe page 31. 167 International Reporting Inc. – OH-4-2011 Hearing Transcripts April 22, 2013 Vol. 167, at paragraphs 16457-16465. 168 B3-40- Application Volume 8C, at page 8-3, adobe page 14. 169 B3-40- Application Volume 8C, at page 8-3, adobe page 14. 170 International Reporting Inc. – OH-4-2011 Hearing Feb 7, 2013 at para 5784. 171 International Reporting Inc. – OH-4-2011 Hearing Feb 7, 2013 at para 5789. 172 Long Term Effect of Initial Exposure to Oil, online: Exxon Valdez Oil Spill Trustee Council: < http://www.evostc.state.ak.us/recovery/longTerm.cfm>. 173 B3-39- Application Volume 8C, at page 8-3, adobe page 3. 174 B3-39- Application Volume 8C, at page 8-3, adobe page 3. (A52189) 42
major consequence following EVOS was illegal artifact or fossil collection and looting.175
135. The potential of damage to Heiltsuk archaeological sites through hydrocarbon damage or through looting represents a significant risk to the community. Most beaches in Heiltsuk territory still host the ancient stone fish traps and clam gardens that Heiltsuk ancestors devised to carefully manage and steward marine resources.176
136. In her oral testimony, Jennifer Carpenter noted that oil interference with artifacts not only eliminates the opportunity to Carbon 14 date document the artifacts, but it also ruins them.177 The artifacts serve as a testimony to a profound and productive relationship between Heiltsuk and the natural environment.178
137. The Application does not address the additional potential impacts of heritage resource loss to coastal indigenous groups. For Heiltsuk Nation and other coastal First Nations, the potential damage stemming from loss of heritage resources is immense. The cost could include physical loss of a site with significant cultural meaning, as well as the loss or diminishment of ability to prove aboriginal title to lands. These potential losses are profound and cannot be compensated.
8.0 Adverse Environmental Effects Likely
138. Pursuant to the Canadian Environmental Assessment Act, 2012 (“CEAA, 2012), the Governor in Counsel cannot make a decision that could permit a designated project to be carried out in whole or in part if the project is likely to cause significant environmental adverse environmental effects that are not justified in the circumstances, thus the JRP must recommend against approval.179
139. The Project is likely to cause significant adverse environmental effects through its day to day operations. Further, an oil spill is likely to occur during the life of the Project. An oil spill, as already canvassed, presents the risk of significant, irreversible impacts.
8.1. An oil spill is likely to occur
140. Heiltsuk Tribal Council adopts Coastal First Nations final written submissions on spill likelihood at paragraphs 204-252.180
175 B3-39- Application Volume 8C, at page 8-3, adobe page 3. 176 International Reporting Inc. – OH-4-2011 Hearing Transcripts April 5, 2012 – Vol. 39 at para 29021. 177 International Reporting Inc. – OH-4-2011 Hearing Transcripts July 27, 2012 – Vol. 64 at para 11673. 178 International Reporting Inc. – OH-4-2011 Hearing Transcripts July 27, 2012 – Vol. 64 at para 11673. 179 Canadian Environmental Assessment Act, SC 2012 c 19 s 52, s. 52(1), [CEAA, 2012]. 180 D35-51- Coastal First Nations- Great Bear Initiative- Final Written Argument. (A52189) 43
8.2. Likely that routine operations will have a significant adverse impact
141. It is also likely that day-to-day operations will result in a significant adverse environmental impact. Northern Gateway’s proposed mitigation strategies are unlikely to reduce the risks and impacts of the Project to an acceptable level.
The FLC will not mitigate tanker impacts to FSC fisheries
142. Northern Gateway relies on the proposed FLC to address adverse effects associated with the tanker traffic.181 In December 2012, witnesses for Northern Gateway confirmed that the FLC only exists at a conceptual level, and it is not intended to create firm or enforceable commitments.
Mitigation measures to Project impacts on marine mammals insufficient
143. The Project impacts to species at risk, including humpback whales, are potentially devastating. Northern Gateway made a commitment to providing a whale monitoring boat that would identify whales along the Northern and Southern approaches. For the months of May to October, Northern Gateway commits that 30 to 60 minutes prior to tanker passage through the CCAA, the whale monitoring boat will survey the limited areas to be transited by the tanker.182 In the event that whales are identified during vessel transits, the whale monitoring boat will identify the location of whales, and the tanker captain will be required to reduce speed to the minimum safe level and where practical attempt to avoid contact with any mammals. The captain, in consultation with the pilot will determine if route adjustments should be made.183
144. Northern Gateway’s proposed mitigation measures are insufficient to reduce the likelihood of significant adverse impacts. Northern Gateway’s proposed measures do not apply in the OWA, where vessel speeds will generally be in the range of 14 to 16 knots.184 Northern Gateway’s failure to create a mitigation strategy for vessel strikes in the OWA, where whales a still at risk of being struck, does not reduce the likelihood of significant adverse impacts to the environmentally sensitive whale populations. It also does not reduce the likelihood of significant adverse cultural impacts to Heiltsuk if the whale population decreases or disappears as a result of ship strikes.
Cannot make determination of that adverse Project impacts are unlikely without baseline
145. Northern Gateway’s failure to gather marine life baseline data in the OWA is concerning for Heiltsuk. Without baseline studies in the OWA, modelling
181 B3-34- Application Volume 8B, at page 11-1, adobe page 2. 182 B3-26- Application Volume 8B at page 5-2, adobe page 88. 183 B3-26- Application Volume 8B at page 5-2, adobe page 88. 184 B3-35- Application Volume 8B at page 13-27, adobe page 27. (A52189) 44
exercises to determine potential environment effects serve little purpose. In the event of a spill, responders will not be able to adequately assess whether spill response initiatives are successful. Also, without baseline studies, it will be impossible to assess the impacts of the Project’s routine operations in the OWA on fish, marine vegetation, and marine mammals. Thus, without baseline studies in the OWA, the Panel cannot make a determination that adverse impacts from the Project are unlikely.
9.0 Heiltsuk’s position on the proper outcome
9.1. The current information is insufficient for a report
9.1.1. A “complete” application means sufficient information
146. The Board shall not prepare and submit to the Minister a report until “an application for a certificate in respect of a pipeline is complete”: subsection 52(1) of the National Energy Board Act (the “NEB Act”).185
147. Therefore, the Board must make a determination about whether the application is “complete”, as completeness a prerequisite to its preparing its report.
148. This is a new requirement, which has only been in force since July 6, 2012. The Board has a new duty to fulfill, and it must be given meaning.
149. The ordinary meaning of complete, as defined by the Oxford Dictionary, is “entire, full, total”. Similarly, Black’s Law Dictionary defines complete as “full, entire; including every item or element of the thing spoken; without omissions or deficiencies.”186
150. The meaning of the term “complete” may also be understood in the context of the surrounding provisions of the NEB Act.
151. The term “complete” refers to the application’s state of completeness at the time the Board must decide if it has enough information to
a. formulate a recommendation, and
b. formulate terms and conditions that it considers necessary or desirable in the public interest.187
152. In order for the Board to formulate a recommendation, the Board
185 National Energy Board Act, RSC 1985, c N-7. 186Henry Campbell Black, Black’s Law Dictionary, 6th ed (St. Paul, Minn.: 1990), at page 285. 187 See subsection 52(1)(a) and (b) of the NEB Act. (A52189) 45
a. must be in a position to “have regard to all considerations that appear to it to be directly related to the pipeline and to be relevant…”188(emphasis added);
b. must be in a position to have regard to, among other things, “any public interest that… may be affected by the issuance of the certificate…”189 (emphasis added); and
c. must be in a position to complete the Board’s environmental assessment under the CEAA, 2012.190
153. Any inability of the Board to complete an environmental assessment due to a lack of information implicates the completeness of the application under the NEB Act, as the Board must be in a position to have regard to any public interest that may be affected by a certificate, including the public’s interest in knowing about and avoiding significant adverse environmental impacts.
154. Completeness must also be viewed in the context of the Amended Agreement for joint review.
a. Completeness requires that the Board specifically be in a position to have regard to “the potential impacts of the project on Aboriginal rights and interests”: Article 6.5 of the Amended Agreement. Indeed, Article 6.5 states that the Board “will require the proponent to provide evidence regarding the concerns of Aboriginal groups….” (emphasis added)
b. Furthermore, the application is complete only if it enables the Board have regard to factors set out in the Appendix of the Amended Agreement (the Terms of Reference), which mandates consideration of, among other things, environmental effects, the feasibility of mitigating measures, and environmental protection.
155. To determine whether the proponent’s application is complete, thereby allowing the Board to proceed to the preparation and issuance of a report, the Board should carefully consider the information provided by the proponent in its application, and also what it has not procured, commissioned or provided with respect to any public interest that may be affected by the issuance of a certificate.
9.1.2. An environmental assessment also means sufficient information
156. As part of “completeness” under the NEB Act, in relation to the Board’s duties under the CEAA, the Board may be unable to prepare a report if Northern
188 subsection 52(2) of the NEB Act. 189 subsection 52(2)(e) of the NEB Act. 190 subsection 52(3) of the NEB Act. (A52189) 46
Gateway has provided insufficient information to allow the Board to perform its statutory duty to complete an environmental assessment pursuant to the CEAA.
157. If the application relates to a designated project within the meaning of section 2 of CEAA, the report prepared by the Board “must also set out the Board’s environmental assessment prepared under that Act”: subsection 52(3) of the NEB Act.
158. Preparation of an environmental assessment requires that the Board consider certain factors. The Board must take into account the following factors:
(a) the environmental effects of the designated project, including the environmental effects of malfunctions or accidents that may occur in connection with the designated project and any cumulative environmental effects that are likely to result from the designated project in combination with other physical activities that have been or will be carried out; (b) the significance of the effects referred to in paragraph (a); (c) comments from the public — or, with respect to a designated project that requires that a certificate be issued in accordance with an order made under section 54 of the National Energy Board Act, any interested party — that are received in accordance with this Act; (d) mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project; (e) the requirements of the follow-up program in respect of the designated project; (f) the purpose of the designated project; (g) alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means; (h) any change to the designated project that may be caused by the environment; (i) the results of any relevant study conducted by a committee established under section 73 or 74; and (j) any other matter relevant to the environmental assessment that the responsible authority, or — if the environmental assessment is referred to a review panel — the Minister, requires to be taken into account. (Section 19 of CEAA).
(A52189) 47
159. The Board has a positive duty to consider the factors listed above in completing an environmental assessment. This duty requires the Board to “perform to a high standard of care”: Alberta Wilderness Association v Cardinal River Coals, [1999] 3 FC 425, [1999] F.C.J. No. 441 [QL] (F.C.T.D.).
160. The Board has wide powers enabling it to properly fulfill this duty. Where the Board is,
…of the opinion that there is not sufficient information available to it for the purpose of conducting the environmental assessment or preparing the report with respect to the environmental assessment of the designated project, it may require the collection of any information or the undertaking of any study that, in the opinion of the responsible authority, is necessary for that purpose, including requiring the proponent to collect that information or undertake that study.191 (emphasis added).
Subsection 23(2) of the CEAA
161. If for any reason the Board has insufficient information relating to the factors listed in section 19, the Board should utilize the powers available to it under subsection 23(2) of CEAA to require Northern Gateway to collect information and undertake studies. This will allow the Board to ensure, in accordance with its statutory duties, that it has completed an environmental assessment as required by subsection 52(3) of NEB.
9.1.3. Information duties specific to aboriginal rights and interests
162. Both the requirements of the NEB Act and the CEAA are specifically affected by a need of the Joint Review Panel to be fully informed of potential effects of the Project on First Nations, under its terms of reference.
163. Section 6.5 of the Amended Agreement creates a positive duty requiring the Joint Review Panel to be “fully informed” about the potential impacts of a project on Aboriginal rights and interests.192
164. This duty requires the Board to have full information in respect of potential impacts of the proposed pipeline on Aboriginal rights and interests. If there are any deficiencies in the information provided to the Joint Review Panel about Aboriginal rights and interests, the Joint Review Panel cannot be fully informed as is required by its Terms of Reference.
191 Canadian Environmental Assessment Act, 2012, 192 B174-7 – Amended Joint Review Panel Agreement, section 6.5, at adobe page 6. (A52189) 48
165. If the Joint Review Panel is not fully informed about the potential impacts of the project on Aboriginal rights and interests, it must “require the proponent to provide evidence regarding the concerns of Aboriginal groups.”193
166. This creates a further positive duty, obligating the Joint Review Panel to require the proponent to provide evidence about Aboriginal rights and interests as it is authorized to do by subsection 23(2) of CEAA, 2012.
167. A positive duty on a proponent to provide information about a certain matter, coupled with a failure to do so, may render an application incomplete. See, for example, Athabasca Chipewyan First Nation v. BC Hydro and Power Authority,194 (failure of proponent to provide any evidence of adverse environmental effects). In that case the missing information was required under a National Energy Board Act regulation, but the same principle applies.
168. Furthermore, if a proponent has not provided information necessary for the Board to understand adverse environmental affects that may specifically have impacts on Aboriginal rights and interests, the Joint Review panel will not be in a position to complete its environmental assessment until the proponent has provided the necessary information.
9.1.4. The Joint Review Panel is not in a position to report
169. While the Joint Review Panel has a great deal of information before it, it is missing key information that it must have before it can complete its tasks.
170. As a result of the Joint Review Panel lacking this key information, respectfully, the Board is not in a position to submit a report under the NEB Act, as the application is not “complete” until such time the Board has all of the information it needs to formulate a recommendation, and to formulate terms and conditions necessary or desirable to the public interest. The Board is not in a position to have regard to all relevant considerations.
171. As a result of the same lack of crucial information, again respectfully, the Joint Review Panel is not in a position to complete its environmental assessment. The Board is not in a position to properly assess important factors, such as the environmental effects of malfunctions or accidents in certain circumstances.
172. The inability of the Joint Review Panel to submit a report under the NEB Act, or under the CEAA, arises in part from a lack of crucial information that renders the Joint Review Panel less than fully informed about the potential impacts of a project on Aboriginal rights and interests – a situation that must be rectified by the Joint Review Panel requiring that the proponent provide evidence necessary for the panel to have regard to the concerns of Aboriginal groups.
193 B174-7 – Amended Joint Review Panel Agreement, section 6.5, at adobe page 6. 194 Athabasca Chipewyan First Nation v. BC Hydro and Power Authority, 2001 FCA 62, [2001] 3 F.C. 412 (A52189) 49
173. Heiltsuk submits that, given the lack of key information, the proponent should be ordered to obtain the necessary information, and to undertake such studies as are necessary for it to obtain the information. The review process should be adjourned until such time the proponent provides the necessary information and conducts the necessary studies.
9.2. Alternatively a report should recommend further hearings
9.2.1. The need for further information and studies
174. Alternatively, if the Joint Review Panel should conclude that it may properly provide a report to some extent, the fact remains that the JRP is lacking crucial information necessary for it to fully complete its mandate.
175. Accordingly, Heiltsuk submits that, if the JRP should decide to provide a report, its recommendation should be that the project not proceed, subject to a reconsideration at a further date, and that the reconsideration involve
a. the proponent obtaining necessary information, including undertaking such studies as are necessary for it to obtain the information, and
b. supplemental public hearings to address the crucial information that the proponent must provide.
176. Heiltsuk makes this submission because the Joint Review Panel must apply the precautionary principle, which may also involve giving effect to adaptive management, in order to formulate a recommendation and to formulate terms and conditions that are necessary or desirable, but this requires a fullness of information that is currently lacking.
9.2.2. The need for information necessary to manage future risk
177. The Joint Review Panel has a mandate to exercise its powers in a manner “that protects the environment and human health and applies the precautionary principle” (emphasis added): subsection 4(2) of the CEAA.
178. The duty to apply the precautionary principle is also expressly set out in Section 6.3 of the Amended Agreement.
179. Madam Justice L’Heureux-Dube defined the precautionary principle in 114957 Canada Lteé v Hudson (Town):
Environmental measures must anticipate, prevent and attack the causes of environmental degradation. Where there are threats of serious or (A52189) 50
irreversible damage, lack of full scientific certainty should not be used as a reason for postponing measures to prevent environmental degradation.195
180. The duty to apply the precautionary principle imposes upon the Joint Review Panel “a duty to gather the information required to fulfill [the] charge” of managing future risk through applying the guiding tenets of the precautionary principle and adaptive management.196
181. The precautionary principle means that, where there is a risk of serious or irreversible environmental damage, the Joint Review Panel should err on the side of caution despite the lack of full scientific certainty with respect to that risk.197
182. In some circumstances, the precautionary principle may allow a project with uncertain effects to proceed with “flexible management strategies” that can adjust to new information regarding adverse environmental impacts.198
183. However, this course of action is premised on the existence of sufficient information for the Joint Review Panel to assess the breadth of potential impacts, and feasible mitigation measures. Without such information, the JRP has no basis to determine if mitigation measures are indeed feasible, or the extent to which certain management strategies are capable of addressing potential impacts:
32 An approach that has developed in conjunction with the precautionary principle is that of "adaptive management". In Canadian Parks and Wilderness Society v. Canada (Minister of Canadian Heritage), 2003 FCA 197, [2003] F.C.J. No. 703, at para. 24, Evans J.A. stated that "[t]he concept of "adaptive management" responds to the difficulty, or impossibility, of predicting all the environmental consequences of a project on the basis of existing knowledge" and indicated that adaptive management counters the potentially paralyzing effects of the precautionary principle. Thus, in my opinion, adaptive management permits projects with uncertain, yet potentially adverse environmental impacts to proceed based on flexible management strategies capable of adjusting to new information regarding adverse environmental impacts where sufficient information regarding those impacts and potential mitigation measures already exists.
33 Accordingly, the scope of the duties incumbent upon a panel must be viewed through the prism of these guiding
195 114957 Canada Lteé v Hudson (Town), 2001 SCC 40 [Spraytech]. 196 Pembina Institute, for Appropriate Development v. Canada (Attorney General), 2008 FC 302 (F.C.T.D.) [Pembina Institute]. 197 Lake Waseosa Ratepayers’ Assocation v. Pieper, 2008 CanLII 6999 (ON SCDC). 198 Pembina Institue. (A52189) 51
tenets: the precautionary principle and adaptive management. As an early planning tool, environmental assessment is tasked with the management of future risk, thus a review panel has a duty to gather the information required to fulfill this charge.199 (emphasis added)
184. While adaptive management can counteract the potentially paralyzing effect of the precautionary principle, this is only justified where the level of uncertainty is not such that it should paralyze the project.200
185. Adaptive management cannot counteract the precautionary principle by allowing a project to proceed with a flexible management strategy in all circumstances. Adaptive management is not appropriate where the level of uncertainty is so extensive that there is uncertainty about the fundamental determination required of the Joint Review Panel under the CEAA. Where there is uncertainty about whether the project is likely to cause significant adverse environmental effects, adaptive management is not a substitute for sufficient information:
If, taking into account the implementation of mitigation measures, there is uncertainty about whether the project is likely to cause significant adverse environmental effects, a commitment to monitor project effects and to manage adaptively is not sufficient.
A commitment to implementing adaptive management measures does not eliminate the need for sufficient information regarding the environmental effects of the project, the significance of those effects and the appropriate mitigation measures required to eliminate, reduce or control those effects.
Where additional information collection or studies are needed over the life-cycle of the project, such studies in themselves should not be considered "mitigation measures".201 (emphasis added)
186. The extent to which the precautionary principle is engaged and adaptive management strategies are appropriate varies with the severity of the risks: as noted in the government’s Framework for the Application of Precaution in Science-Based Decision Making About Risk, one of the five principles for precautionary measures is that “(b) precautionary measures should be
199 Pembina Institute . 200 Pembina Institute. 201 Canadian Environmental Assessment Agency Operational Policy Statement, “Adaptive Management Measures under the Canadian Environmental Assessment Act”. (A52189) 52
proportional to the potential severity of the risk being addressed and to society’s chosen level of protection.”202
187. The extent to which the precautionary principle is engaged and adaptive management strategies are appropriate also varies with the level of uncertainty that is present:
Where there is credible evidence that shows that harm is unlikely, the degree of uncertainty is significantly reduced and it is consistent with the precautionary approach for the Director to approve the activity and include measures to prevent harm or to confirm the predictions. On the other hand, where there is a great deal of scientific uncertainty, as in Dawber, the Director must presume there will be harm. In that case, a reasonable person having regard for the precautionary approach would refuse the permit. Approving a permit and adding measures to make up for a lack of confidence in the evidence is not appropriate. This would also be the case if the evidence showed a high likelihood of harm.203 9.3. Any recommendation should be against the Project
188. The Joint Review Panel’s duty is to conduct a science and fact-based assessment of the potential adverse environmental effects, so that the Governor in Council’s final determination is not “left to occur in a vacuum”.204
189. As the information currently before the Joint Review Panel is lacking in certain key respects, the Joint Review Panel does not have a proper foundation to properly formulate a recommendation, or terms and conditions. Similarly, the Governor in General will not be in a position to assess
the full scope of what significant adverse environmental impacts may result from the project,
the full extent to which public interests may be affected by the issuance of a certificate,
the full extent of potential impacts on Aboriginal rights and interests, and
whether such effects are justified in the circumstances.
202 Government of Canada, A Framework for the Application of Precaution in Science-Based Decision Making About Risk
190. That said, if a decision is to be made only on the information at hand, current information dictates that the potential adverse impacts of the Project are too substantial, given the precautionary approach, and the recommendation should be against the Project.
191. The precautionary principle dictates a presumption of worst-case severity of impacts in the event of uncertainty for purposes of decision-making, in terms of
a. adverse environmental impacts, and
b. adverse impacts on Heiltsuk’s aboriginal rights and interests.
10.0 HTC’s recommended course of action
192. Northern Gateway’s failure to create adequate mitigation measures for routine operations, particularly in the Open Water Area, has the potential to result in significant adverse impacts to First Nations FSC fisheries and to SARA-protected marine mammals.
193. Northern Gateway’s inadequate spill modelling, the lack of establishing any baseline for marine life, and a lack of information about what would occur in the event of a significant spill in the Open Water Area, means that:
a. if spills were to occur, the absence of a baseline for marine life would impair any inquiry into their full impact for purposes of understanding effects and the effectiveness of mitigating measures; and
b. if spills were to occur, the absence of sufficient scientific information on the behaviour and fate of diluted bitumen products leaves too much uncertainty about potential impacts and appropriate recovery measures.
194. Northern Gateway has not provided enough information for its Application to be complete, for the JRP to properly complete an environmental assessment, or for the JRP to be fully informed about the potential impacts of the project on aboriginal rights and interests.
195. Alternatively, given the severity of the potential adverse environmental and other impacts which the Joint Review Panel ought to presume, Heiltsuk submits that under section 52(1) of the National Energy Board Act, any final recommendation should be against the project proceeding, subject to further information or studies warranting reconsideration:
a. Under section 52(1)(b) of the National Energy Board Act, the JRP is required to submit to the Minister all terms and conditions that the Panel considers necessary to attach to a Certificate of Public Convenience and Necessity for the Project. (A52189) 54
b. The only sensible solution, given the magnitude of the Project and its potential for risk, is for the JRP to recommend that Northern Gateway complete its scientific assessments and baseline studies.
c. Following completion of the necessary work to conduct the assessment, that work should be considered, with full capacity provided to impacted First Nations to allow them to participate in the future environmental assessment.
196. Finally, Heiltsuk submits that under the Canadian Environmental Assessment Act, RSC 2012, c19 the potential adverse environmental impacts of the project – impacts the JRP should presume under the precautionary approach, due to ongoing uncertainty and a lack of crucial information – are significant and severe enough that they are not justifiable in the circumstances. On these grounds, the JRP should not recommend approval of the Project. (A52189) (A52189) (A52189) (A52189) 1
1.1. Introduction ...... 1
1.2. Heiltsuk Economic Development Corporation ...... 1
1.3. Developing Capacity ...... 2
1.4. Current Heiltsuk Economy and Rebuilding Marine Resources ...... 3
1.5. Adverse Impacts on the Heiltsuk Economy ...... 5
1.6. Adverse Impacts are not Justifiable by the Economics of the Project ...... 9 1.6.1. Insufficient economic benefits to First Nations and for BC ...... 9 1.6.2. Insufficient insurance leaving burden on First Nations and public ...... 10
1.7. Submissions Adopted ...... 14
1.8. Conclusion ...... 14
1.1. Introduction
Economic Development – Building Capacity
“Unemployment on the Central Coast is significantly higher than the National average. Jobs in the marine sector, once the dominant employer in our communities, are almost non-existent. Yet, over 70% of our people believe that a priority should be placed on marine-based economic development.
“The [Marine Use] Plan’s goals, objectives and strategies for economic development aim to once again make marine industries the foundation of the Central Coast economy, while taking into consideration the carrying capacity of the ecosystems in our territories and recognizing our Nations’ skills and assets.”1
1.2. Heiltsuk Economic Development Corporation
1. In 2005, Heiltsuk Tribal Council developed a 15 Year Economic Plan (“Plan”) to create independence from government and bring economic well-being to the Nation. The Plan applies Gvi’ilasin its stewardship of the economy.
2. The Guiding Principles of the Plan include,
We shall respect the Aboriginal Rights and Title of the Heiltsuk people and assert our Aboriginal Rights and Title in the economic development process;
1D85-3-15 Heiltsuk Tribal Council’s Written Evidence, Appendix P at page 24. (A52189) 2
We shall ensure that all levels of government, the private sector, NGO‟s, foundations and other key stakeholders respect the Aboriginal Rights and Title of the Heiltsuk Nation and peoples in the economic development process;
We shall utilize an integrated and wholistic approach to Heiltsuk economic development;
We shall foster and promote the health and well-being of all Heiltsuk peoples in the economicdevelopment process;
We shall aim for the full employment of all Heiltsuk citizens in the Heiltsuk economic development process;
We shall foster and promote sustainable development in the Heiltsuk economic development process; and
We shall educate our people to actively participate in our economic development process.2
3. The Heiltsuk Economic Development Corporation (HEDC) was established by the HTC to manage the business affairs of the Heiltsuk peoples. The HEDC is guided by the principles of the Plan. The focus of its activities is on developing capacity within Heiltsuk Nation through a variety of economic initiatives.3
1.3. Developing Capacity
4. For Heiltsuk Nation, the development of capacity is vitally important to the goal of becoming self-sufficient by moving away from government dependency and creating a sustainable and healthy economy. The proposed project carries with it unacceptable risks to Heiltsuk’s economic well-being, which include adversely impacting Heiltsuk’s existing albeit already depressed economy, defeating the efforts of Heiltsuk Nation to increase their capacity through joint programmes with Canada and the Province, and eliminating economic opportunities.
5. Heiltsuk are not opposed to economic development. However, they cannot support economic development, such as the proposed pipeline, that has the potential to destroy their way of life. Chief Councillor Marilyn Slett confirmed:
29215. CHIEF MARILYN SLETT: We are not anti-development by all means. We are diversifying our way of life. We are looking at new economic opportunities. We, however, cannot accept a project that will promote supertankers in our coastal waters. We cannot bear the risk to our
2 D85-3-10 Heiltsuk Tribal Council’s Written Evidence, Appendix I at page Heiltsuk 15 Year Economic Plan at page 11. 3 D85-3-09 Heiltsuk Tribal Council’s Written Evidence, Appendix H at page 10. (A52189) 3
way of life, to our cultural identity. We will cease to be Heiltsuk without our deep-rooted connections to our land and to our sea.4
6. Ocean productivity is inextricably linked to the relationship between Heiltsuk and their ancestral homelands. Heiltsuk Nation has never relocated; instead, the Nation has engaged in many dedicated efforts to strengthen their marine economy.5
7. Even without the challenge of the deeply troubling lack of consultation by the Crown, the Project has little or no economic benefit for Heiltsuk Nation. Indeed, in the event of a spill, impacted First Nations will likely be forced to rely on even more government support. In a sobering statement made during the hearings for oral evidence, Mr. Coren Humchitt, a Heiltsuk Youth, noted:
28159. MR. COREN HUMCHITT: As the economy collapses and the resources are no longer available, the First Nations will be forced to accept other financial support in other humiliating ways. We already have the negative stereotype name as ‘lazy Indians’ and it will only get worse.6
1.4. Current Heiltsuk Economy and Rebuilding Marine Resources
8. If the Project is approved, there is an unacceptable risk that Heiltsuk Nation will lose the economic opportunities currently available to them. In addition, their traditional stewardship of their territory may be negatively and irreparably impacted.
9. Currently, approximately 85-90% of the Heiltsuk people are unemployed, largely due to the deterioration of the fishing industry.7Many of these people are “dependent on the sea to supplement what is not provided” to Heiltsuk people; they continue to depend on the sea for survival.8
10. Over the past several decades, Heiltsuk have witnessed the decline in their fisheries, including a devastating failure of their herring fisheries.9
11. The 10-15% of Heiltsuk peoples who are employed generally hold positions that depend on marine resources, directly or indirectly. In an effort to become independent from government assistance and to rebuild marine resources, Heiltsuk have engaged in a number of initiatives. These include exploring shellfish aquaculture projects, revitalizing the Heiltsuk Fish Processing Plant, enhancing salmon harvesting by restoring the local
4 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 (A40623). 5 D85-3-19 Heiltsuk Tribal Council’s Written Evidence, Appendix S at page 6. 6 12-04-04 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 (A40595). 7 D85-3-02 Heiltsuk Tribal Council’s Written Evidence at page 15. 8 12-07-27 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 – Vol. 64 (A43164) at 11904. 9 12-04-03 International Reporting Inc. – OH-4-2011 Hearing April 3, 2012 – Vol. 37 (A40564) at 27386, Chief Harvey Humchitt Sr.; 27252, Chief Gary Housty. (A52189) 4
stocks through hatcheries, developing existing clam and prawn fisheries, planning for a geoduck fishery, and bringing back the herring fishery.10
12. Heiltsuk Integrated Resource Management Department (“HIRMD”), which was established by Heiltsuk Tribal Council, manages land and marine resources throughout Heiltsuk territory. The aquatics department “deals with licensing, fishing openings and closings, stream monitoring and restoration, and has formed invaluable partnerships with conservation organizations and prominent academic institutions.”11
13. HIRMD also created a Heiltsuk Marine Use Plan and negotiated a harmonized Central Coast Marine Use Plan to co-manage marine waters and resources amongst the four Central Coast First Nations. Unfortunately, because the Federal government withdrew from PNCIMA and withdrew its funding of the coast-wide marine planning process, it is now unlikely that a coast-wide marine use plan will come into effect.
14. Regardless of the dishonorable conduct of the Federal government, thesecompleted marine use plans provide Heiltsuk and other Central Coast First Nations with the opportunity to incorporate their local and traditional knowledge into fisheries management, translating these community views and knowledge into the identification of permissible activities in their waters, areas requiring special protection and areas of particular significance to the Heiltsuk people.12
15. The Heiltsuk Marine Use Plan’s guiding principles echo Gvi’ilas:
Ensure conservation of natural and cultural resources,
Ensure Heiltsuk priority access to resources for cultural and sustenance use,
Enable appropriate Heiltsuk commercial and recreational use of resources, and
Enable appropriate non-Heitsuk commercial and recreational use of resources.13
The plan includes spatial marine planning to set out 7 marine zones allocated to specific uses. The 7 zones are,
1. Ecological Reserves that protect the most sensitive habitats from extractive human impacts.
2. Heiltsuk Exclusive Areas where Heiltsuk can engage in non-extractive tourism use.
10 D85-3-02 Heiltsuk Tribal Council’s Written Evidence. See also 12-04-05 International Reporting Inc. – OH-4- 2011 Hearing April 5, 2013 – Vol. 39 at 29018. 11 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at 29194-29197, Chief Marilyn Slett. 12 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2013 – Vol. 39 at 29194-29196-29201, Chief Marilyn Slett. 13 D85-3-14 Heiltsuk Tribal Council’s Written Evidence, Appendix O at 2-3. (A52189) 5
3. Habitat Protection Areas which provide protection for sensitive habitats, while allowing for commercial, recreational and Heiltsuk uses that limited negative impacts on habitat.
4. Aquaculture Management Areas that allow for opportunity shellfish and closed containment fin fish aquaculture.
5. Transporation Corridors providing for the safe and efficient movement of marine vessels while protecting important species and sensitive habitats.
6. Alteranative Energy Areas that allow for the opportunity to develop wind, tidal, wave energy industries.
7. Adaptive Management areas that provide space for reasonable marine uses.14
Under the plan, oil and gas tankers are not permitted in Heitsuk’s 7 zones or in any of the Coastal First Nation territories.
16. Heiltsuk are also engaged in a number of initiatives with the Federal and the Provincial government to re-establish their commercial fishing industry. Heiltsuk’s involvement in the Pacific Integrated Commercial Fisheries Initiative (PICFI), a DFO program provides aboriginal communities, including the Heiltsuk, with additional licences for commercial fisheries in the Open Water Area. The Allocation Transfer Program serves a similar purpose and includes commercial fishing training and limited financial assistance with the purchase of fishing equipment. These programs exist to provide capacity to First Nations for joint management of sustainable commercial fisheries.15
1.5. Adverse Impacts on the Heiltsuk Economy
17. The Heiltsuk efforts have focused on building capacity and gaining independence. These economic initiatives would be seriously impacted by an oil spill. An oil spill has the potential to destroy the economic opportunities arising from such initatives as the shellfish aquaculture projects, the just re-opened Heiltsuk Fish Processing Plant, the prawn fishery, the communal clam fishery, and the reconciliation process to re- establishing the herring fishery.16
18. Heiltsuk Nation is seeking to re-establish the ability to rely on their traditional resource base, as they have for approximately 10,000 years. The revitalization of the Heiltsuk Nation fish plant provides a source of great pride and hope for the future after years of economic hardship. The plant’s success relies on the ability of commercial fishermen to
14 D85-3-14 Heiltsuk Tribal Council’s Written Evidence, Appendix O. 15 13-02-25 International Reporting Inc. – OH-4-2011 Hearing Feb. 25, 2013 – Vol. 134 at 15809-15814. 16 D85-3-02 Heiltsuk Tribal Council’s Written Evidence at page 15. (A52189) 6
deliver their catch in order to employ community members to process the fish at the fish plant.17
19. In addition, Heiltsuk intend to begin harvesting butter clams at the plant, which are attracting a significantly increased market value.18 Annual landed values from the Heiltsuk clam fishery have historically varied between $110,000 to $385,000.19 Clams are inter-tidal and can be adversely impacted by an oil spill.20 Harvesting of clams will represent approximately 70 jobs in the community, and harvesting of broadleaf kelp will create approximately 30 more jobs.21 In the event of an oil spill, this economic opportunity representing approximately 100 jobs may be destroyed.
20. The Supreme Court of Canada recognized Heiltsuk’sAboriginal right to a commercial herring spawn-on-kelp fishery. This right was recognized in the seminal case, R v Gladstone, [1996] 2 SCR 723 [Gladstone]. The herring spawn-on-kelp fishery represents a lucrative economic opportunity for Heiltsuk Nation. The product is both important to Heiltsuk community members and is consumed almost exclusively in the Japanese market, where it is known as kazunkokokombu.22 William Gladstone described the importance of the herring spawn-on-kelp fishery as such:
28674. The Heiltsuk have their own fish plant where we process roe on kelp for the commercial market. Roe on kelp has always been of critical significance to us because it's the first fresh food of the year and highly nutritious. Traditionally, we collected and preserved vast amounts of roe on kelp and we traded in large-scale trade with our neighbours.
28675. Trading literally tonnes of roe on kelp for other foods, which we didn't have access to, as you heard William earlier, such as eulachon. This trade, going back to pre-contact times, is well documented and formed the key evidence before the Court in Gladstone.
...
28684. The sale of roe on kelp has been an important source of income for our people and has brought a sense of pride to our community because of the right we have always known we hold has been affirmed by the highest court of the land.
21. Due to a decline in the herring fishery, Heiltsuk has not had the opportunity to access their herring spawn-on-kelp fishery. Heiltsuk has been actively engaging with Fisheries
17 12-04-03 International Reporting Inc. – OH-4-2011 Hearing April 3, 2013 – Vol. 37 at 27290-27291, Chief Gary Housty. 18 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2013 – Vol. 39 at 28799, Cecil Reid. 19 See D85-5-29 Heiltsuk Tribal Council – HTC DFO Intertidal Claim Joint Management Plan 2010-2011. 20 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2013 – Vol. 39 at 28799, Cecil Reid. 21 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2013 – Vol. 39 at 28800-28801, Cecil Reid. 22 12-07-27 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 – Vol. 64 at 11802, Dr. Gary Vigers. (A52189) 7
and Oceans Canada in the Gladstone Reconciliation process in order to gain access to their fishery and co-manage the resource.23
22. A spill event has the potential to wipe out an entire stock of herring.24The Government of Canada has a management plan for all stocks of herring, but that plan does not specifically guard against or plan for an accidental oil spill.25 If the already fragile Central Coast herring stock was impacted or destroyed by a spill, Heiltsuk would lose access to a defining component of their economy, and would be denied the opportunity to practice their affirmed Aboriginal right.
23. Heiltsuk’s efforts in and capacity built from engaging in reconciliation activities with the Crown including developing the Heiltsuk Marine Use Plan and the Central Coast Marine Use Plan, PICFI, and ATP, will likely be lost if there is an oil spill. An oil spill will adversely affect the already depressed commercial fishing industry, defeat the purpose of marine use planning and leave fishing licenses worth very little.
24. Many resources have been invested in these reconciliation programs. On January 26, 2012, the Harper government provided over a million dollars in funding through the Western Diversification Program and the West Coast Community Adjustment Program. These funds were used to assist in the building renovations and repairs to the Bella Bella fish plant facility.26These investments, made to aid in the development of economic opportunities for Heiltsuk people, will be rendered worthless by an oil spill.
25. Further, Heiltsuk rely on resources that they can trade with relatives and neighbours up and down the coast. An oil spill would likely affect all of these communities, damaging this trade network.27
Community Impacts
26. The proposed pipeline has the potential to damage the marine environment and coastline in a way that will have associated negative consequences for communities. Following the Exxon Valdez oil spill (“EVOS”), there were severe consequences for impacted communities, since members ofthese communities, like Heiltsuk Nation, relied on marine resources for economic, subsistence, and cultural benefit.
27. Following EVOS,one community impact was an entire season closure for herring and salmon, as well as advisories for shell fish in some areas.28
23 See D85-3-05 Heiltsuk Tribal Council’s Written Evidence, Appendix D; D85-3-06 Heiltsuk Tribal Council’s Written Evidence, Appendix E; D85-3-07 Heiltsuk Tribal Council’s Written Evidence, Appendix F; D85-3-08 Heiltsuk Tribal Council’s Written Evidence, Appendix G. 24 E9-21-08 Government of Canada – Response to IR No 1 from GitGa’at First Nation at 43-44. 25 13-04-23 International Reporting Inc. – OH-4-2011 Hearing April 23, 2013 – Vol. 168 at 18403.
26 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 5, 2012 – Vol. 39 at 29177, Chief Marilyn Slett. 27 12-07-27 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 – Vol. 64 at 11680. (A52189) 8
28. Another consequence was the higher level of stress in communities which were highly dependent on renewable resources.29 Even seventeen years after the spill, members of the affected communities still exhibited signs of chronic psychological and community disruption.30
29. These community disruptions have been attributed to the long-term collapse of the fisheries, to oil persistence on beaches and in salmon streams, to the litigation process, and to the length of time to receive compensation.31 In addition, following EVOS, many of the people that were employed for control and cleanup were non-residents, which resulted in community conflict and segmentation.32
30. After an oil spill, the length of time that a fishery is closed varies significantly based on the site-specific characteristics.33 The presence of hydrocarbons in the marine environment can additionally result in the tainting of seafood resources, even if contaminant levels are below the threshold for food safety concerns.34 Loss of confidence in seafood safety and quality can have an additional impact on seafood markets, resulting in adverse consequences.35Both the actual and potential contamination of fish can impact the FSC harvest of food.36Closures for conservation purposes would also reduce access.37 The Application does not sufficiently consider the impact of these closures and loss of confidence on a community that significantly relies on fisheries for both commercial and social needs.
31. The Application notes that while the impacts of a spill on socio-economic conditions after mitigation measures are expected to be minimal, the full economic and social costs of a spill would only be known after the cleanup has been completed, compensation paid, and environmental and social conditions return to near normal.38
32. Even in communities not directly impacted by the EVOS, subsistence households reported that they limited their harvesting activities due to fear that these ocean food, historically a central focus of their culture, might now be poison.39 Heiltsuk community members share this concern, as one Heiltsuk youth remarked, in the event of an oil spill, “[t]he animals that I have seen and some that I have harvested with my parents and my grandmother will be tainted and some will die off because of all the poison that will be
28 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 35. 29 B38-2 Northern Gateway – Response to IR No 1 from Coastal First Nations at page 198-201. 30 B38-2 Northern Gateway – Response to IR No 1 from Coastal First Nations at page 198-201; E9-21-08 Government of Canada – Response to IR No 1 from GitGa’at First Nation at 43-44. 31 B3-22 – Vol. 7C – Risk Assessment and Management of Spills – Kitimat (Part 1 of 1) at page 103. 32 B3-22 – Vol. 7C – Risk Assessment and Management of Spills – Kitimat (Part 1 of 1) at page 104. 33 B3-22 – Vol. 7C – Risk Assessment and Management of Spills – Kitimat (Part 1 of 1) at page 67. 34 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 35. 35 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 35. 36 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 36. 37 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 35. 38 B3-41 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 5 of 6) at page 26. 39 D85-3-19 Heiltsuk Tribal Council’s Written Evidence, Appendix S at page 11. (A52189) 9
spill into the waters....”40 Based on the experience of First Nation communities following EVOS and the evidence Heiltsuk community members tendered, community perceptions of the tainting of marine resources following a spill are important indicators of spill impact.
1.6. Adverse Impacts are not Justifiable by the Economics of the Project
1.6.1. Insufficient economic benefits to First Nations and for BC
33. The project offers insufficient economic benefits to British Columbia, to coastal First Nations, and specifically to the Heiltsuk Nation to justify the potential adverse impacts discussed above.
34. Northern Gateway estimates that there will be only 268 jobs created by direct employment in British Columbia, and that, of these jobs, only 78 full-time on-site jobs will be generated.41
35. There will be no full-time operations jobs created in coastal British Columbia outside of the terminal location. While Northern Gateway predicts the creation of 54 jobs in the “Coastal B.C. region”, 52 of these jobs are located at the terminal and the remaining 2 are located in Terrace.42
36. Further, while Northern Gateway has stated in cross-examination that jobs will be created as a result of mitigation measures that will be implemented and environmental studies that remain to be complete, evidence as to the number of jobs, their duration, and where they will be located has not been provided. However, the system of of emergency responders that Northern Gateway has proposed would only generate “up to, you know, 20 full-time positions scattered – to be scattered around a number of yet-to-be determined locations.”43
37. Northern Gateway’s commitments represent very little benefit to the coastal First Nations. As Northern Gateway has stated, First Nations, such as Gitxaala Nation, will not benefit proportionally with all Canadians. If First Nations decline to participate in the offer of equity ownership or in marine benefits, the only benefits will be indirect benefits that would “flow from Federal and Provincial agencies which have access to the improved general revenues created by the Project.”44
38. In cross-examination, when asked whether there is any certainty of a benefit flowing from the revenues directly to First Nations, the Northern Gateway panel could not point
40 12-04-05 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 at 28147. 41 B3-16 – Northern Gateway Volume 6C – Human Environment ESA (Part 1 of 3) at page 4-24. 42 B8-2 – Northern Gateway Volume 6C Section 4.4 – ESA – Regional Socio and Economic Effects at page 72. 43 12-12-15 International Reporting Inc. – OH-4-2011 Hearing Transcript Dec. 15, 2012 – Vol. 116 AT 16921. 44 B38-9 Northern Gateway – Response to IR No 1 from Gitxaala Nation at page 19. (A52189) 10
to any portion of predicted $28 billion in revenue that would go directly to First Nations, as the government would decide how to use these revenues.45
39. Northern Gateway has claimed that there will be “increased employment opportunities immediately after the spill” and that this short-term compensation for adverse socio- economic effects can help reduce long term effects. Indeed, Northern Gateway noted that, during the years following the Exxon Valdez spill, “incomes increased during the oil spill year (1989) for all household types due to increased wage incomes.”46
40. This is not an adequate answer. Income will decrease in the long-term, as clean-up jobs disappear while the marine economy may not recover. Giving regard to Heiltsuk’s current unemployment rate of approximately 80-90 percent in Bella Bella47 and the community’s reliance on the economic benefit of its marine resources, the risk of destruction of the marine environment cannot be negated through provision of temporary clean-up jobs.
41. It is perverse to justify the massive adverse impact on First Nations with the promise of jobs to clean up the spill that has caused the massive adverse impact.
1.6.2. Insufficient insurance leavingburden on First Nations and public
42. There will not be sufficient insurance coverage in the event of an oil spill. The maximum amount of compensation available for an individual oil spill incident is $1.3 billion.48 While Northern Gateway asserts that there has never been a spill in Canada that exceeds the compensation limits, and such a spill is very unlikely,49Northern Gateway also notes that the costs for the Exxon Valdez spill were approximately $2.6 billion.50 This cost does not include the $507.5 million in punitive damages, or the $900 million paid to the State and Federal Government toward restoring natural resources.51
43. If the losses exceed the available compensation range, which is possible based on the cost of the Exxon Valdez spill, which occurred over twenty years ago, Northern Gateway’s ‘extended responsibility’ will not cover these additional losses.52
Northern Gateway interpretation of ‘cultural loss’
44. In addition, the insurance coverage will not provide compensation for cultural losses or the economic impacts of cultural losses. The insurance schemes that are currently in place
45 12-09-05 International Reporting Inc. – OH-4-2011 Hearing Transcript Sept. 5, 2012 – Vol. 71 at 17880. 46 B38-2 Northern Gateway – Response to IR No 1 from Coastal First Nations at page 16. 47 12-04-04 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 at 28681, William Gladstone. 48 B38-16 Northern Gateway – Response to IR No 1 from Kitsumkalum at page 13. 49 B39-3 Northern Gateway – Response to IR No 1 from Haisla Nation at page 24. 50 B38-2 Northern Gateway – Response to IR No 1 from Coastal First Nations at page 4. 51 B38-2 Northern Gateway – Response to IR No 1 from Coastal First Nations at page 4. 52 B39-3 Northern Gateway – Response to IR No 1 from Haisla Nation at page 24. (A52189) 11
will not compensate the loss of distinctive traditions or knowledge, such as the harvesting of spawn on kelp.53
45. Northern Gateway has claimed otherwise, stating that the insurance scheme can compensate cultural losses through the existing legal framework.54 However, Northern Gateway’s interpretation of “cultural loss” is narrow and restrictive. In relation to the insurance fund that covers claims for cultural losses or damages, Northern Gateway considers cultural losses to be those of a subsistence fishing or “artisanal” nature.55
46. While Northern Gateway responded to an information request by stating that the International Oil Pollution Claims Manual contemplates cultural losses, it appears that the manual recognizes only small scale fisheries, operated “at a subsistence or only semi- commercial level”, which may “have difficulty in submitting documentary evidence in support of their claims.”56
47. Northern Gateway’s response refers to the International Oil Pollution Compensation Funds’ website. However, the website shows that an oil pollution incident can generally give rise to claims for five types of damage: property damage; costs of clean-up operations at sea and on shore; economic losses by fishermen or those engaged in mariculture; economic losses in the tourism sector; and costs for reinstatement of the environment.57
48. Northern Gateway also states that the Marine Liability Act, SC 2001, c 6, explicitly provides that damages for cultural losses are available, and suggests that the definition of “claimant” in the Act provides for damages stemming from cultural loss. However, the only language in the definition that could encompass a cultural loss is paragraph 107(1)(d): “an individual who fishes or hunts for food or animal skins for their own consumption or use.”
49. In asserting that there will be insurance coverage available to compensate cultural losses, Northern Gateway has narrowly restricted the definition of cultural loss to damages related to lost earnings from fishing for subsistence purposes. This effectively ignores the broader cultural benefit to communities that the fisheries and a clean, accessible coastline can provide. This latter benefit cannot be properly compensated through insurance under the existing funds or statutory schemes.
Cultural Losses That Cannot Be Compensated
53 13-02-25 International Reporting Inc. – OH-4-2011 Hearing Feb. 25, 2013 – Vol. 144 (A50603) at 15848, Dr. Jack Ruitenbeek. 54 B39-3 Northern Gateway – Response to IR No 1 from Haisla Nation at page 23; B38-9 Northern Gateway – Response to IR No 1 from Gitxaala Nation at page 17. 55 B39-3 Northern Gateway – Response to IR No 1 from Haisla Nation at page 166. 56 B39-3 Northern Gateway – Response to IR No 1 from Haisla Nation at page 166. 57See online at
50. In addition, the loss of traditional cultural knowledge may adversely impact the Heiltsuk economy in ways that cannot be compensated. The loss of knowledge about traditional fishing practices and harvesting locations may result in adverse impacts to the fishing economy that will continue over generations, and from which Heiltsuk Nation cannot recover.
51. Heiltsuk Nation also risks losing community-building experiences that contribute to the development of Heiltsuk values. Currently, family camps at the Koeye River Lodge provide an opportunity for “families to learn how to clean fish, to jar fish, barbecue wild salmon, clean and jar halibut, clean and jar crab, thus providing an opportunity for social interaction, to learn by doing, to experience the value of being taught how to clean fish by an Elder or community member who displays patience, understanding and acceptance.”58 If an oil spill occurs, this valuable opportunity to pass on traditional knowledge to younger generations will be lost and monetary compensation would be neither provided nor adequate to compensate this adverse consequence
52. The cultural losses that Heiltsuk Nation will suffer in the event of an oil spill are not quantifiable, as the vast majorities of losses suffered by subsistence cultures are not attached to objects to which one might claim ownership. Rather, Heiltsuk face not only a lost ability to harvest resources, but also a loss of a sense of belongingness and kinship ties.59
53. One example is the tradition of the Heiltsuk Potlatch, which may be irreparably impacted. Copper is the centerpiece to the Heiltsuk Potlatch and each is hammered to have human characterstics, such as a face, ribs, backbone and a name.60 Chief William Housty spoke about these coppers at an oral hearing, stating that:
28577. MR. WILLIAM HOUSTY: I would say that 90 percent of the old coppers that exist here amongst my people were given names that come from creatures that live in the ocean. Ocean dwellers. This is because the copper represents the wealth and the worth of the Potlatch. And the richness and wealth that comes to my people from the sea cannot be measured by any means. Just like the copper.
28578. An example that I have here is a copper that belongs to Chief Carmen Humchitt. His son sits right there, Ga’it (ph) Arnold. He's also an owner of this copper. The name of his copper is Hohenewha (ph), the killer whale because the killer whale represents power, strength, grace and richness. Just like their copper.
28579. A second example is the copper that belongs to Chief Gwioocheshas (ph), Joann Green. The name of the copper is Kups (ph) after the spring
58 12-07-27 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 – Vol. 64 at 11575, Mavis Windsor. 59 D85-3-19 Heiltsuk Tribal Council’s Written Evidence, Appendix S at page 18. 60 12-04-04 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 at 28575-28576, William Housty. (A52189) 13
salmon because of the great abundance that they come in and because of that great abundance, they're able to nourish our people.
28580. If any of these sea creatures or ocean dwellers were to be damaged or brought to extinction because of an oil spill, this would force the culture to change the way that we name our coppers. No longer would we be able to name them after these beings. And this would make us stray away from what has been taught to us by our ancestors.61
54. Further, Heiltsuk Chiefs cannot properly host the traditional Potlatch if Heiltsuk lands are damaged by an oil spill:
11755. MR. RORY HOUSTY: When a Chief hosts a potlatch, he needs to feed the people. A majority of the food is served -- the majority of food served at cultural events comes from our land and our ocean. Our traditional Heiltsuk territory provides many different foods for us.
11756. We as Heiltsuk are still fortunate enough to be able to have salmon, herring roe, halibut, cod, seaweed and shellfish. A Chief shows his wealth by being able to serve his people traditional foods. Our hereditary Chiefs cannot practice our cultural ways that our ancestors have passed on to us from generation to generation when an oil spill occurs.62
55. In the event of an oil spill, the loss of these traditions, integral to Heiltsuk culture, could not be compensated, even if there was insurance coverage available.
56. Similarly, the origin story of Heiltsuk describes the creation of salmon for the health and well-being of Heiltsuk Nation.63 William Housty explains that an oil spill could destroy the significance of this story, “degrading the generations and generations of people who descend from the story and who have depended upon the creation of the salmon for so long.”64 This devastating loss could not be compensated. Even if it was available, monetary compensation would not remedy the severe impact of this cultural loss, which will have a detrimental effect on future generations of Heiltsuk.
57. In cross examination, Northern Gateway’s witness panel agreed that the loss of some cultural effects cannot be effectively compensated.65This uncompensated loss will be devastating for Heiltsuk Nation. As Mavis Windsor stated,
11583. MS. MAVIS WINDSOR: My biggest fear is that the end result of an oil spill will be that our future generations will not experience what it means to be Heiltsuk in every sense of the word. We do not want our future
61 12-04-04 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38. 62 12-07-27 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 – Vol. 64. 63 12-04-04 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 at 28538, William Housty. 64 12-04-04 International Reporting Inc. – OH-4-2011 Hearing April 4, 2012 – Vol. 38 at 28540. 65 12-02-23 International Reporting Inc. – OH-4-2011 Hearing February 23, 2013 – Vol. 143 at 14840. (A52189) 14
generations to not have a strong Heiltsuk identity, to be woven into a society that is not ours.66
Difficulties in accessing funds
58. Compensations are typically paid out in seven and a half months as a median, and five months on average.67 If the information is not readily available regarding what appropriate compensation can be, then it will take longer.68 Research is required to establish a baseline in order to assess compensation.69
59. In sum, the existing insurance schemes and legislation will not adequately compensate the Heiltsuk Nation for their economic and cultural losses in the event of an oil spill. Heiltsuk Nation will be forced to rely on government assistance or will be forced to relocate its community. Neither of these options represent a fair outcome for Heiltsuk Nation.
1.7. Submissions Adopted
60. HEDC adopt the submissions of Heiltsuk Tribal Council, Heiltsuk Hereditary Chiefs, Heiltsuk Youth Voice and the Coastal First Nations.
1.8. Conclusion
61. Heiltsuk Nation is working hard to rebuild its marine economies by exploring new initatives such as shellfish acquaculture projects and revitalizing its fish plant. Heiltsuk Nation has also sought to develop capacity by engaging in reconciliation programs with the Crown, such as the development of the Heiltsuk Marine Use Plan.
62. These initiatives and plans have been developed over many years and have just now become ready to take flight and benefit Heiltsuk people. The proposed project puts this into jeopardy and provides no economic benefits to Heiltsuk people. Heiltsuk Nation hopes to become prosperous, to gain independence from government, and to create a bright and promising future for their children and their children’s children. This bright future lies in developing a sustainable marine-based economy, developing capacity, and becoming a self-sufficient Nation.
63. If the proposed pipeline is allowed to proceed, the hard work will be destroyed when an oil spill inevitably occurs. The hard work of Heiltsuk people will be defeated, as their efforts to build capacity will have been wasted. It is likely that Heiltsuk Nation would become more dependent on the government, which is devastating for the Nation financially and psychologically, individually and as a community. The adverse impacts upon the environment, the economy and the Heiltsuk people are too great to allow this
66 12-07-27 International Reporting Inc. – OH-4-2011 Hearing July 27, 2012 – Vol. 64. 67 13-02-23 International Reporting Inc. – OH-4-2011 Hearing Feb. 23, 2013 – Vol. 143 at 15308. 68 13-02-23 International Reporting Inc. – OH-4-2011 Hearing Feb. 23, 2013 – Vol. 143 at 15325-15237. 69 13-02-25 International Reporting Inc. – OH-4-2011 Hearing Feb. 25, 2013 – Vol. 144 at 15833.
(A52189) 15 project to proceed. Heiltsuk Nation urges the Joint Review Panel to recommend that the project should not proceed.
(A52189) (A52189)
(A52189) 1
1.1. INTRODUCTION ...... 1 1.2. HEILTSUK YOUTH VOICE ...... 2 1.3. INHERITANCE OF NATURAL RESOURCES ...... 2 1.4. STEWARDSHIP PRACTICES PASSED ON TO HEILTSUK YOUTH ...... 2 1.5. LOSS OF RIGHTS AND CULTURE ...... 3 1.6. LOST ECONOMY ...... 9 1.7. SUBMISSIONS ADOPTED ...... 11 1.8. CONCLUSION ...... 11
1.1. Introduction
1. Mr. Korin Humchitt1 is 17 years old. He is a member of Heiltsuk Youth Voice, and he was born and has lived his whole life in Bella Bella. At the community hearings, he spoke about the impact that oil spill would have on First Nations and the economic consequences that would result:
28159. MR. COREN HUMCHITT: As the economy collapses and the resources are no longer available, the First Nations will be forced to accept other financial support in other humiliating ways. We already have the negative stereotype name as ‘lazy Indians’ and it will only get worse.
…
28161. MR. COREN HUMCHITT: What is my generation going to be able to tell our children? That their people were people that depended on Welfare to survive and support their families? No matter what we do or how we say it, it does not sound good, and there is no way to make it sound okay. Other people are also going to be quick to judge us and look down on us by calling us ‘lazy’ and saying that all we need is more money, then we’ll shut up.2
1Incorrectly referred to in the transcripts as “Coren Humchitt”. 2 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38. (A52189) 2
2. From the mouth of a youth, whose world should be about the promise of adventure and a fulfilling future, these words are sobering statements about the economic reality faced by Heiltsuk youth.
1.2. Heiltsuk Youth Voice
3. Heiltsuk youth hold the honour and responsibility to steward Heiltsuk environment and culture for themselves and for future generations.
4. Heiltsuk Youth Voice is a youth group that was established in 2009, to address issues of concern to Heiltsuk youth living in the community of Bella Bella. Heiltsuk Youth Voice also actively advocates for youth on these issues of concern, such as the proposed Northern Gateway project.
5. The need to empower and educate Heiltsuk youth is central to the well-being of Heiltsuk Nation. Tragic historical events such as the government’s imposition of the residential school system and the banning of cultural practices that spanned generations have re-emphasized the importance of a strong and continued practice of passing on knowledge of Heiltsuk history and laws to the Heiltsuk youth.3
1.3. Inheritance of Natural Resources
6. Heiltsuk also have a commitment to leave an inheritance for their children. This inheritance is in the form of natural resources. Due to decreased access to resources, the responsibility to safely steward the land to ensure that future generations receive an inheritance is as important as ever.4
1.4. Stewardship Practices Passed on to Heiltsuk Youth
7. In Heiltsuk culture, traditional harvesting practices are taught to the youth by older generations. Ms. Mavis Windsor, a member of the Heiltsuk community, testified that she was 11 years old when she and her sisters were taught how to clean fish by their grandmother, Annie Mason. Ms. Windsor recalled that this was her first memory of feeling a sense of accomplishment and pride. Through learning by doing, she was taught what was considered to be an adult task. Ms. Windsor explained that it was not until many years later that she had a complete understanding of how the social interaction and hard work involved in learning by doing, as well as the act of working together and sharing with others, was the way
3 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27112 at 27049-27051, Pauline Waterfall. 4 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27112, Pauline Waterfall; 02-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 27536-27537, Evelyn Windsor. (A52189) 3
in which Heiltsuk people have always passed down their knowledge and traditions.5
8. The intergenerational transfer of knowledge plays a key role in effective management of natural resources and is integral to the preservation of Heiltsuk culture.
9. The concept of intergenerational knowledge has been adopted into the ecosystem- based management scheme, an integrated approach to natural resource management on British Columbia’s Central and North Coast. The ecosystem based management recognizes that conventional resource management is threatening biodiversity by failing to consider the linkages between communities and the environment.6 Inherent within the principle of intergenerational knowledge is the concept of learning from one’s elders.7 If the ability to harvest sea foods is lost or restricted, even for only a few seasons, the ability to transfer this knowledge could be severely restricted. As Rory Housty notes, “when an oil spill occurs, it’ll be impossible to teach our Heiltsuk youth how to preserve our traditional foods for the winter.”8
10. Heiltsuk youth also hold the responsibility to learn Heiltsuk harvesting practices and Heiltsuk law, so they can pass down their knowledge to future generations.9
1.5. Loss of Rights and Culture
11. In the event of an oil spill, Heiltsuk youth and future generations of Heiltsuk risk losing practices that are integral to Heiltsuk culture. Courtney Reid, a student at Bella Bella Community School, explained:
28041. MS. COURTNEY REID: Our water is my nation’s base to hang on to our tradition; take that away you’ll be committing an act of cultural genocide. My nation as of right now depends on the water traditionally and economically. The economical half does not just mean money but involves traditional protocols like trading and ranking of families. 12. The intergenerational transmission of knowledge about fishing and harvesting sites is an important part of Heiltsuk culture. As part of this transmission, Heiltsuk pass on the knowledge of these fishing and harvesting sites to their youth. There
5 12-07-27 International Reporting Inc. – OH-4-2011 Hearing Transcript July 27, 2012 – Vol. 64 at 11552- 11553. 6 D85-3-13 Heiltsuk Tribal Council’s Written Submissions, Appendix N at page 8. 7 D85-3-13 Heiltsuk Tribal Council’s Written Submissions, Appendix N at page 9. 8 12-07-27 International Reporting Inc. – OH-4-2011 Hearing Transcript July 27, 2012 – Vol. 64 at 11711, Michelle Brown. 9 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 27802. (A52189) 4
is a place to get seaweed and another place to get halibut.10 When harvesting seaweed, Heiltsuk only harvest in certain areas in this territory.11 Chief Woyola testified that as a young boy, his parents would take him to salmon camps, where they would gather, smoke, and dry salmon.12 The locations of these resources and the practices associated with the harvest of the resources depends on the availability of the resource to continue. If the ecosystem is disrupted by an oil spill, even for a short period of time, Heiltsuk will not be able to teach their youth this important knowledge about their traditional fishing and harvesting sites.
13. Heiltsuk also risk the loss of knowledge related to the gathering of herring spawn- on-kelp, which is another practice that is integral to Heiltsuk Nation. Heiltsuk consider the return of the herring to their community the beginning of the new year, because herring are the foundational food for all other marine life, including animals and birds.13 Heiltsuk Nation has maintained its herring spawn-on-kelp fishery by harvesting the eggs once they have been laid and releasing excess eggs in order to sustain the fishery.14 The continuing practice of the harvest and consumption of herring roe represented the transmission of knowledge from Elders to the young people. It represented traditional teachings about when is best to go and harvest, and the best places that one should go.15
14. In R v Gladstone, [1996] 2 SCR 723 [“Gladstone”], the Supreme Court of Canada confirmed that the practices of gathering, drying, transporting and commercial exchange of herring spawn-on-kelp is an integral part of the distinctive culture of Heiltsuk Nation.16 Despite a decrease in the availability of herring stocks because of Fisheries and Oceans mismanagement and overfishing of the resources,17 Heiltsuk youth continue to learn sustainable practices of harvesting herring, such as spawn-on-kelp, yaga, or branch-harvesting.
15. Heiltsuk youth are fearful of the potential impact of an oil spill on their ability to harvest in future years. Kylie Gladstone, the daughter of one of the litigants who spent approximately ten years proceeding through the Canadian court system in
10 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28255, Dr. Maki Ikemura. 11 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27178, Chief Edwin Newman. 12 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27192. 13 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27086, Pauline Waterfall. 14 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27106, Pauline Waterfall. 15 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28262, Dr. Maki Ikemura. 16 Gladstone at para 27. 17 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27386. (A52189) 5
order to gain recognition of the right to a commercial herring spawn-on-kelp fishery in Gladstone, expressed:
28077. MS. KYLIE GLADSTONE: My father, who is Donald Gladstone Junior, had a court case with the Supreme Court of Canada in which he and my uncle, William Gladstone, won the right -- won the Aboriginal right to make a livelihood off selling roe on kelp for all Aboriginals.
28078. Knowing that these pipeline tankers will have a major spill jeopardizes this right, absolutely scares me. There will be no more herring eggs on roe -- on kelp to harvest, not even for a living.18
16. Scientific opinion is that an oil spill will have detrimental impacts on herring. An oil spill is likely to lead to long-term detrimental impacts on herring fish eggs as a result of sequestered oil that can persist for years after a spill.19 While Northern Gateway’s evidence suggests that the impacts to herring following the Exxon Valdez oil spill (“EVOS”) were minimal,20 other evidence contests this assertion. Though the scientific community has not established a complete causal chain linking EVOS to the collapse of the Prince William Sound herring stock in 1993/1994, cross-examination of Dr. Robert Spies demonstrates that there is still significant scientific opinion that the spill may have played some role in the stock decline.21 Dr. Spies also noted in written evidence that establishing a complete causal chain is practically impossible in the wake of accidents in poorly characterized ecosystems, such as the Prince William Sound ecosystem.22 If herring are negatively impacted by an oil spill, Heiltsuk may lose a resource that is integral to their culture.
17. Following EVOS, there was an entire season’s closure for salmon and herring.23 Rockweed, an edible seaweed, disappeared from the mid and upper tidal zones following EVOS and only returned three years later. This destruction could disrupt practices that are of significant importance to Heiltsuk culture.
18 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38. 19 E9-21-08 – Government of Canada – Response to IR No 1 from Gitga’at First Nation at page 39. 20 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 33. 21 13-05-01 International Reporting Inc. – OH-4-2011 Hearing Transcript May 1, 2013 – Vol. 175 at 28665-28666. 22 D72-32-08 – Gitxaala Nation – Report on Expert Opinion from Petroleum Spills for Gitxaala, Part 7 at page 17. 23 B3-39 – Vol. 8C – Risk Assessment and Management of Spills – Marine Transportation (Part 3 of 6) at page 35. (A52189) 6
18. Future generations of Heiltsuk people risk losing not only cultural practices such as harvesting herring spawn-on-kelp, but also other important elements of Heiltsuk culture. Heiltsuk have origin stories, or Nuym Giwa. Chief William Housty, one of the youngest Heiltsuk chiefs, describes the importance of these origin stories to Heiltsuk Nation and the damage that an oil spill would cause:
28525. CHIEF WILLIAM HOUSTY: All of the animals on the land and the creatures of the sea are all a part of an intricate cycle of life that exists. And this intricate lifecycle are explained in these origin stories. These stories explain very important values and customs and explain how and why certain things were created for the benefit of my ancestors.
…
28538. This story is very important. It tells of the creation of the salmon for the health and the well-being of my ancestors. And this has persisted to thousands of years to my generation.
…
28540. Further to this, an oil spill would nullify the importance of the salmon to my people and would completely disregard the importance and significance of the above origin story, thus degrading the generations and generations of people who descend from the story and who have depended upon the creation of the salmon for so long.24
19. Chief William Housty also speaks to the importance of the pristine condition of Heiltsuk territory for Heiltsuk spiritual practices. To be initiated into secret societies, a process of isolation and purification was necessary. This process required a place of isolation:
28587. CHIEF WILLIAM HOUSTY: It's a very powerful place when you go there. The big house still stands although most of it's on the ground. And we've taken people there when they're on this isolation and this journey to purify themselves to be initiated into these societies. 28588. So these places still exist today. They're still in use, continually used through the generations. To acquire the supernatural power that they desired, a process of daily ocean and river bath was necessary to purify the spirit so that they can find what we call “the supernatural power”. Many days were spent alone with little to no food, or only drinking water.
24 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38. (A52189) 7
28589. And here's where the concept of isolation and purification are put in jeopardy from an oil spill. One of the most crucial actions when in isolation was to daily drink salt water. My people believe that is contained within the salt water a lot of life, even though it cannot be seen. When ingested, empowers the person. That all the little particles and beings in the salt water that you can't see with the naked eye, as they pass through your body, they purify you.25
20. If the proposed project is allowed to proceed, an oil spill is likely to occur, contaminating the salt water. This will prevent Heiltsuk youth from engaging in spiritual practices that are integral to Heiltsuk culture, causing changes to the fabric of Heiltsuk culture.
Loss of Traditional Foods
21. Traditional foods provided by the ocean are an indispensable component of the Heiltsuk diet. Chief Gary Housty explains that “herring is a vital fundamental food that only for us -- not only for us but also for salmon, whales, birds, seals, sea lions and other marine animals.”26 Chief Woyola confirms that Heiltsuk “can't imagine being without seaweed because that's a very important health food for our people.”27
22. While Northern Gateway’s Application indicates that harm to the individual species following a spill may be of short duration, a brief interruption of traditional practices can have profound consequences for a community.
23. In her evidence, Dr. Maki Ikemura, a family physician in Bella Bella, relayed her personal experiences with communities who experience interruption to their ability to gather traditional foods. Dr. Ikemura testified about her experience working in Chisasibi, where the James Bay Cree were advised to stop consuming their food fish because of dangers of mercury contamination.28 Community members advised Dr. Ikemura that they could trace their unhealthy eating habits to that time because they had to stop consuming their traditional diet of fish and replace it with convenience foods.29
24. During her work in the north, Dr. Ikemura concluded that once one generation stops eating traditional food, the knowledge and practice is effectively gone from
25 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38. 26 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27256. 27 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27179. 28 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28225. 29 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28226. (A52189) 8
collective memory and is lost to future generations.30 Dr. Ikemura illustrated her conclusion with a cautionary recollection of her experience in the north:
28234. DR. MAKI IKEMURA: For example, during my time in Nunavik, I sat countless times in people’s kitchens with Elders. And the Inuit eat on the floor traditionally. So they would lay out a cardboard on the floor and we’d have a big caribou leg or a fish from the freezer and be chopping it up with an axe and eating, dipping it in fermented seal oil, which takes very much like eulachon grease.
28235. So I would be sitting with the Elders on the floor, eating this very, very healthy traditional food and the young adults and the children, who are living in the same household, would pass us by, go straight to the fridge and grab baloney out of the fridge to eat.
28236. So a generation that grows up having eaten baloney out of the fridge I suspect will not be learning the art of waiting by an ice fishing hole with a three-prong spear ready to catch the fish. This generation won’t be able to teach their children how to skin seal or prepare dried fish, or they won’t appreciate the taste of that fermented seal oil. This is what I saw in Nunavik.
28237. With increasing reliance on store-bought foods and decreasing consumption of traditional foods, I’ve seen time and time again in all these communities that I’ve mentioned, that there is an increase in heart disease, in diabetes, high blood pressure and mental illness.31
25. Clearly, the reduction in access to the traditional foods of a community does not need to be permanent in order to have a permanent impact on a community’s well-being and ability to carry out its traditional practices.
26. In addition to resource closures, the perception that a food resource has been tainted can significantly extend the period of time that a community will refrain from harvesting and consuming its traditional foods. This was the case following the EVOS. Even in communities that were not directly impacted by the EVOS, subsistence households reported that they limited their harvesting activities due to fear that these ocean foods, historically a central focus of their culture, might now be poisoned.32 Likewise, Dr. Ikemura testified that following the construction and operation of a nickel mine in a Nunavik community watershed, the community’s Elders and youth advised her that the arctic char they caught were deformed, and tasted like soap or like chemicals.33 Heiltsuk community members share this
30 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28223. 31 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28225. 32 D85-3-19 Heiltsuk Tribal Council’s Written Evidence, Appendix S at page 11. 33 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28227. (A52189) 9
concern, as one Heiltsuk youth remarked that in the event of an oil spill, “[t]he animals that I have seen and some that I have harvested with my parents and my grandmother will be tainted and some will die off because of all the poison that will be spill into the waters....”34
27. A community’s perception of oiled fish products as being tainted or poisoned can result in the knowledge of the practice being eliminated from collective memory and lost to future generations.
28. Indeed, Coren Humchitt explained that he associates an oil spill with the tainting of animals and the environment:
28147. MR. COREN HUMCHITT: The animals that I have seen and some that I have harvested with my parents and my grandmother will be tainted and some will die off because of all the poison that will be spilled into the waters and that will be trailed onto the beautiful land of the animals. 29. The impacts of an oil spill are unlikely to be short-term or reversible for the Heiltsuk youth. In order to practice their Aboriginal rights and culture and sustain Heiltsuk knowledge within the community, Heiltsuk youth require uninterrupted access to their resources. The compensation scheme cannot compensate the loss of the intergenerational sharing of traditional cultures and practices. The potential for this profound loss cannot be justified.
1.6. Lost Economy
30. The Heiltsuk economy is severely depressed, with unemployment rates fluctuating between 80-90 percent in Bella Bella.35 Over the past several decades, Heiltsuk have witnessed a decline in their fisheries, including a devastating failure of their herring fisheries.36
31. In recent years, Heiltsuk Nation has sought to rebuild its economy. The Heiltsuk efforts have focused on building capacity and gaining self-sufficiency. The revitalization of the Heiltsuk Nation fish plant is a source of hope for Heiltsuk people, representing growth and the promise. As described in the closing submissions of Heiltsuk Economic Development Corporation at paragraph 19, the fish plant currently employs approximately 100 people and provides Heiltsuk youth with prospects for the future.
34 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28147. 35 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28681, William Gladstone. 36 12-04-03 International Reporting Inc. – OH-4-2011 Hearing Transcript April 3, 2012 – Vol. 37 at 27386, Chief Harvey Humchitt Sr.; 27252, Chief Gary Housty. (A52189) 10
32. As described in the closing submissions of Heiltsuk Economic Development Corporation at paragaph 11, Heiltsuk Nation is also engaged in other promising initiatives in the hope of becoming independent from government assistance and rebuilding marine resources, such as exploring shellfish aquaculture, spearheading salmon enhancement programs, restoring the local stocks through hatcheries, developing existing clam and prawn fisheries, planning for a geoduck fishery, and bringing back the herring fishery.
33. Through Coastal First Nations, Heiltsuk has negotiated land use agreements and harmonized marine use plans with the federal and provincial governments. These marine use plans provide Heiltsuk with the opportunity to incorporate their local and traditional knowledge into fisheries management, translating these community views and knowledge into the identification of permissible activities in their waters, areas requiring special protection, and areas of particular significance to the Heiltsuk people.37
34. By utilizing the marine resources in a sustainable manner, these initiatives will provide positive benefits to the community by building capacity and by encouraging the maintenance of traditional knowledge.
35. Heiltsuk Nation has invested countless hours in these initiatives and programs to provide a brighter future for Heiltsuk children and youth. Heiltsuk efforts have focused on developing sustainable economic opportunities that emphasize resource stewardship and the maintenance of traditional knowledge. These efforts are designed to create jobs for Heiltsuk people while preserving resources for future generations, thereby ensuring that Heiltsuk culture and traditions will continue.
36. If an oil spill occurs, these economic initiatives risk being lost, as well as the opportunities to rebuild marine resources and develop capacity. The ability of Heiltsuk Nation to re-establish its economy while passing on traditional knowledge and stewarding resources would be lost.
37. The Panel is required to consider effects of the Project on the physical environment as well as on the health and socio-economic conditions and the physical and cultural heritage of Aboriginal peoples. The Project carries significant risks of environmental impacts as well as direct and indirect impacts on Heiltsuk rights and culture. The risks associated with the Project cannot be justified.
37 12-04-05 International Reporting Inc. – OH-4-2011 Hearing Transcript April 5, 2012 – Vol. 39 at 29196- 29201, Chief Marilyn Slett. (A52189) 11
1.7. Submissions Adopted
38. Heiltsuk Youth adopt the submissions of Heiltsuk Tribal Council, Heiltsuk Hereditary Chiefs, Heiltsuk Economic Development Corporation and the Coastal First Nations.
1.8. Conclusion
39. In recent years, Heiltsuk Nation has made many efforts to rebuild its economy and to create a bright future for Heiltsuk children and youth. Heiltsuk Youth believe that this inspiring vision for the future can still become a reality if the current path of creating a sustainable marine economy is followed. Heiltsuk Youth hope that this path will enable them to become independent productive members of the Heiltsuk Nation and to have meaningful local employment prospects in the future. If the proposed project is allowed to proceed, an oil spill is inevitable, and the future that could have been had will be lost. The risk of adverse impact to the environment, to the economy, and to promising young people is too great to allow the proposed project to proceed. This is why Heiltsuk Youth say “no” to the proposed Northern Gateway pipeline.
40. Jean Larsen, a student at the Bella Bella Community School, put it best when he spoke of the impact a spill on the Heiltsuk people’s past, present and future:
28175. MR. JEAN LARSEN: In the future, [our future] generations will ask why someone didn’t say “No”, and the answer would be: “We did, but no one listened.”
…
28183. Enbridge is not only harming the people of now, they are harming the people of the past, the people of the future, and they are risking the loss of thousands of years of cultural heritage.38
38 12-04-04 International Reporting Inc. – OH-4-2011 Hearing Transcript April 4, 2012 – Vol. 38 at 28175.