October 17, 2017
Pacheedaht First Nation
Delivered by email:
Dear Chief Jones and Councillors,
RE: RBT2 preliminary depth of consultation assessment for Pacheedaht - adjusted from moderate to high
Thank you for your comments on the sufficiency of the Vancouver Fraser Port Authority (VFPA) Marine Shipping Addendum for the Roberts Bank Terminal 2 Project (RBT2) dated October 31, 2016.
The Canadian Environmental Assessment Agency (the Agency) sent you a letter on May 12, 2016 in response to your request to reassess the depth of consultation for Pacheedaht that is integrated in the environmental assessment process for RBT2. Based on the additional information you provided in your October 31, 2016 letter the federal review team for RBT2 has concluded that the depth of consultation for Pacheedaht should be revised to high. Our rationale is provided below along with an updated work plan for Pacheedaht’s input and comment. Also, Carrie Crull from our Participant Funding Program will be in touch shortly to discuss your funding agreement and the amount of funding that may be allocated to assist Pacheedaht with participating in the environmental assessment and associated consultation activities.
Preliminary review of potential impacts
We examined Pacheedaht’s right to fish at Swiftsure Bank and the assertion of Aboriginal rights and title at Swiftsure Bank. Pacheedaht’s right to fish at Swiftsure Bank forms the core of this assessment. The federal review team focused their assessment on your articulation of how marine shipping associated with RBT2 could change the practice of the right to fish at Swiftsure Bank through three potential pathways of impacts:
1. the sufficiency of resources needed to practice the right, 2. the ability to access preferred locations, with relative ease, to practice the right, and 3. the experiential changes that would happen to the landscape should RBT2 proceed.
Please review the diagram below and provide us with your comments on whether we understood the information you have provided to date correctly. Please also feel free to add considerations that are not captured in our understanding below. This information is what we considered when assessing what pathways of impacts the additional ship traffic from RBT2 may have on the exercise of Pacheedaht’s fishing rights at Swiftsure Bank. This is not the Crown’s determination of the content or validity of the Pacheedaht’s rights; rather it is our understanding for the purposes of considering how the shipping associated with RBT2 could impact the exercise of the right as articulated by Pacheedaht.
Canadian Environmental Agence canadienne 1+1 Assessment Agency d'evaluation environnementale
Resources Experience -It's an important place because people can go out and know they will get abundant resources there. A - Container traffic has the potential to disturb Pacheedaht's connection to the lands and waters harvest there can provide families with fish for the year. Fishers move in response to where the feed and ·There are short windows in which P.lcheedaht fish and during that time needing to watch for the fish are, this changes seasonally and annually. The nutrient bloom changed last year so Pacheedaht increased traffic takes away from fishing time had to adjust where they were fishing. • There ar!! foggy days where you can only hear ships, not s!!e anything. Thes~> days it affects th!! - It is Important as a nursery area, for old growth rockfish, sun fish and humpback. It's important ability to fish because you have to move to other locations. This creates barriers for members to because the underwater formation there causes an upwelling off the bank. fish because of safety concerns. They have to charter boats, which costs $1000 a day to be safe on - Swifsure Bank is closed to commercial and sport fishers but not Aboriginal fishers. In order to protect the water. There is seasonal fog during fishing season· April to September is the most intensive the right to fish, Pacheedaht wants to protect the resources needed to practice that right. fishing time. -A putter fleet (14-20 foot canoes with motors} used to be -Past impacts include depletiOn of key spec1es (ex. Whaling and sealing), used to go out to Swiftsure, now bigger boats are needed for policies that restrict access and exercise of rights. Shipping traffic Pacheedaht's Right to Fish safety. 25 years ago people would be out there in a canoe that through this area impacts the species living there. had a cabin built onto it with a 10 horsepower motor. -Vessel noise Is likely to have negative effects on marine resources - There is no other area that is as productive and of cultural significance • Pacheedaht fishers rely on each other for calling-in issues on that are culturally important to Pacheedaht, including fish and manne as Swiftsure Bank. Swiftsure Bank is therefore is not a preferred their hand held VHFs and chec king on each other. Coast Guard mammals. location but rather 1S essential to maintain access and use for the is far away, there might be limited options for emergency - The risk of vessel strikes on marine mammals, including killer whales, Nation. Pacheedaht fishes heavily in and around J-buoy, but have a response because it's remote out there. will increase. whole web of sites at Swiftsure . - Big ships aren't following guidelines of where to be in the -Wakes from the increased ship traffic could damage i ntertidal and - Pacheedaht fisheries department manages Swiftsure Bank for food, shipping lanes. shoreline habitat, which 1s where Pacheedaht members harvest many social and ceremonial fishing for their nation and other nations through -Moving the anchor (to fish the Pacheedaht anchor at preferred species. traditional protocol arrangements. Pacheedaht has cla 1med shared Swiftsure and fish with rod and reel, they noted that Ditidaht -Container traffic has the potential to contaminate or damage Aboriginal title (with Makah and Dltidaht) to Swiftsu re Bank. will run longllnes to fish out there sometimes} will disrupt resources and habitat relied upon for the exercise of Pacheedaht's -Elders teach youth at Swiftsure Bank. There is a spiritual element to fishing to move if a ship is coming toward them. It ta kes a harvesting rights in the event of an accident or malfunction resulting in going out and getting what you need and sharing that with your family while to get set back up again and if the fish are biting it takes the release of bunker fuel or other contaminants. - Pacheedaht's interests in Swiftsure and trade go back to the 1700s all the concentration to get the fish up, it's hard to pay -Key species at Swiftsure that are unique Include Pacific when there are accounts of them selling fish to Spanish explorers on attention to the AIS. Grey Cod and Sablefish. the bank. There is an economic and trade aspect to the right as - Ships w ill honk if fishing Pacheedaht has licences and a commerc•al neet.
Access -Swiftsure Bank is prone to fog, which can cause safety concerns for small ships navigating in the shipping lane, such as when they encounter unexpected ship wake, which can be up to 6ft depending on weather. If it's foggy, you can't tell which direction t he wake w ill come from. -Equipment, such as radios, is an important tool to enable small vessels to adhere to safe practices on the water within a shipping lane. Pacheedaht has raised concerns about the costs of such equipment to community members. Pacheedaht can't always use cell phones unless they are on a US contract because there is no cell signal in Port Renfrew and not often a signal out at Swiftsure. This lack of cell signal also impedes use of web based safety apps like BoatTracker or looking online for where t he big ships are. - Pacheedaht Fisheries issues licences to other Nations to be able to fish within Pacheedaht territory. They have issued licences for Nations from Micmac to Haida to Wisconsin through their intertribal fisheries protocol. The f ish allocat ions come out of other Nation's quota, and Pachecdaht reports the fish caught back to DFO. Pacheedaht encourages other Nations to go out together in groups if they don't know the area for safety reasons. OFO knows when there is a Pacheedaht member in the closed area because Pacheedaht Fisheries lets OFO know and they fly a Pacheedaht flag. - In 2005 the out bound shipping lane was moved north, such t hat it now intersects Swiftsure Bank and other hereditary fishing grounds. -The Indian Reserve Commissioner choose the reserve location for Cullite because it allowed quick easy access for Pacheedaht to Swiftsure. · There are Pacheedaht members on reserve (about 100) and other members living in Victoria, Vancouver and Seattle that rely on Swiftsure fishing for food and cultural purposes. People come back to the community for 'salmon days'. This means t hat when people are home, they have a small window that depends on the weather during which they can get out to Sw iftsure. lf a ship disrupts t hem during this time they might not have another day when they can get the fish they need for the year. Usually during a charter, one person from four or five families will be on the boat and w ill fish for their families. - When fishing for halibut, it takes about an hour after the bait goes down for the fish to come in towards the smell. The halibut bite during the slack tid e, when the tide not rushing past. At non-slack tid e, the fish tend to hunker down on the ocean floor and wait because the water is moving so quickly that it could sweep them away. Th is means there is a limited window in which to catch halibut during a day- t he tides and bait ing needs to be right. If you have to pull up anchor because a ship is coming t hough, you lose the time it took to set the smell and could lose the favourable t ide window.
Additional information provided by Vancouver Fraser Port Authority in the Marine Shipping Addendum to the Environmental Impact Statement (CEAR # 316) and subsequent Information Request responses was also considered.
For illustrative purposes, the Crown has put together a map (see below) of Swiftsure Bank, the inbound and outbound shipping lane and our understanding of Pacheedaht territory.
Proposed Methodology for Assessing the Seriousness of Impacts on Rights
The Agency is currently updating the Government’s approach to assessing potential impacts of a project on the exercise of Aboriginal rights, including the application of pathways (outlined on page 1) and the criteria used to determine severity of impact. The previous methodology is available in CEAR document #134. The previous criteria called ‘context’ has been expanded into several more specific criteria, including cultural integrity, governance, impact inequity; cumulative effects are examined in further detail, and the effectiveness of accommodation and mitigation are considered in the assessment of the seriousness of adverse impacts of a project (or in this case marine shipping associated with RBT2) on the exercise of Aboriginal rights. We are open to feedback from you on the appropriateness of these criteria (listed below), and any additional criteria Pacheedaht would like to suggest.
Criteria to assess the potential seriousness of adverse impact on the exercise of Aboriginal rights:
1) Likelihood: Assessing the certainty that the impact on a right will occur. 2) Extent: Consideration of the geographic extent of the impacts in relation to the geographic extent of the right, as practiced. 3) Duration, Frequency and Reversibility: Includes consideration of how often the impact may occur within a given period of time, the length of time that an impact may be discernible, and whether the exercise of rights is expected to recover from the impact.
4) Cultural Integrity: Includes consideration of what are the impacts of the Project on the ability of a group to continue customs, traditions and practices that are integral to the group’s distinct culture. 5) Cumulative impacts: Recognition and understanding of the existing state of affairs along with the expected cumulative effects as a result of the project. 6) Governance: Responsibilities of a group related to self-governance and self-determination with respect to their members (including future generations) and the management of traditional lands and resources, taking into consideration the laws, customs and structures of the group. This includes consideration of Aboriginal title. 7) Impact Inequity: Impacts to sub-populations of a group, including women, elders, youth, and/or others, with considerations of risks, benefits and resiliency. 8) Effectiveness of Accommodation/Mitigation Measures: Includes consideration of whether the group has been consulted on the proposed potential accommodation and if so, do they agree that it addresses their concerns. Assesses the Crown and group’s confidence in the efficacy of the proposed potential accommodation measures to avoid or minimize impacts on rights.
Based on the information the Crown has gathered thus far in the process, the following summarizes the Crown’s analysis of potential impacts to Pacheedaht’s fishing rights at Swiftsure Bank from marine shipping traffic associated with RBT2. Basic information used includes the following assumptions made by the Crown: • Vessel traffic associated with RBT2 is anticipated to consist of up to 260 container ship calls per year when the terminal reaches its design capacity, between 2025 and 2030.This will result in 520 RBT2-associated container ship movements per year (one call equals two movements—one inbound and one outbound), or on average approximately 1.5 ship movements per day through the marine shipping area (MSA) during the 358 operating days per year of RBT2. This would result in an average of approximately three ship movements every two days. • Existing vessel traffic in the MSA includes commercial, government, military, and recreational vessels (e.g., bulk carriers, general cargo ships, container ships, tankers, passenger ferries, cruise ships, tourism boats, tugs and barges, commercial fishing vessels, coast guard vessels, naval vessels, government agency vessels, recreational fishing vessels, and pleasure craft). Pacific Pilotage Authority has said there are about 7-10 similar sized vessels (deep sea freighters) passing Roberts Bank per day in each direction following the shipping lanes next to Roberts Banks daily, which Coast Guard has estimated would mean an average of 54 vessels transiting through the shipping lane at Swiftsure Bank per week. If RBT2 came online with a comparable volume of existing marine traffic, there would be up to a 12% increase. With the additional container ship capacity, proposed liquid natural gas ships and shipping for the Kinder Morgan Trans Mountain Expansion project, and other projects, the number of similar sized vessels in the shipping routes is likely going to be higher. This assessment will work on an assumption of a 12% increase in cargo vessel traffic resulting from RBT2 to be on the conservative side. • There is a risk of an accident or malfunction with fuel, oil or cargo entering the environment. The assessment below focuses on the impact of ships transiting through Pacheedaht’s territory. If there was to be a high consequence spill or accident, the impact to Pacheedaht’s rights would be high.
For the pathway of impacts to the marine resources that Pacheedaht has identified as important to the right to fish at Swiftsure Bank, the Crown will rely on the Review Panel to assess the environmental effects of marine shipping associated with RBT2. Once the Review Panel has
issued their report, the Crown will use that information to assess how the pathway of effects on resources would be brought into the analysis below.
The Crown will also rely on Pacheedaht to continue to provide information to the Review Panel on the 8 criteria outlined above in order to ensure a well-informed assessment. Additional funding will be offered to Pacheedaht to provide additional information in the Review Panel process. Additional information that would be useful for the Crown’s assessment has been requested below on some of the criteria. Any additional information provided by Pacheedaht will be considered by the Crown:
Frequency -- If Pacheedaht has additional information on the frequency of interruption of fishing activities at Swiftsure Bank that happens with the current level of shipping, that information would be helpful to the assessment. It would also be helpful to understand approximately how many days of the year and during which months Pacheedaht members fish at Swiftsure Bank. There have been no official recorded incidents through Marine Communication and Traffic Services on vessel traffic through Swiftsure Bank in the past year. Please provide any information Pacheedaht may have on collisions, or actions Pacheedaht has taken to avoid collisions that you may have collected anecdotally.
Duration: It would be helpful to hear from Pacheedaht how much time would be required to return the exercise of rights to the baseline conditions against which changes from RBT2 would be considered. A better understanding about the conditions needed for fishing at Swiftsure Bank and how often Pacheedaht would like to be out fishing at Swiftsure Bank would help the assessment.
Reversibility: More information from Pacheedaht about whether any disruptions from the RBT2 associated ships are reversible would be appreciated.
Cultural Integrity: The Crown would also like to know if there are any unique stories or language associated with fishing at Swiftsure Bank that could be impacted by the marine shipping associated with RBT2.
Governance: Pacheedaht has stated that they share title to Swiftsure Bank with Ditidaht and Makah. Please explain to the Crown how you see the marine shipping associated with RBT2 as impacting your title and governance rights.
Impact inequity: Additional helpful information from Pacheedaht could include information such as, are certain family groups or community members more impacted than others (e.g. families living outside the community, women or children).
Accommodation:
In the Marine Shipping Addendum Completeness Review - Responses to Additional Information Requirements (CEAR #391) the Port listed the following accommodation suggestions provided by Pacheedaht.
1. Move shipping lanes off Swiftsure Bank, and out of the area closed to commercial and recreational fishing (i.e., an area important to Aboriginal fishing). 2. Consider tethering of ships and pilotage in and out of Juan de Fuca Strait. 3. Make a long-term commitment to Pacheedaht First Nation for benefitting from use of Pacheedaht First Nation territory. 4. Establish a marine emergency response centre in Port Renfrew, and adequately equip and train Pacheedaht First Nation members to respond to emergencies. 5. Undertake stochastic oil spill modeling in Pacheedaht First Nation’s territory
With respect to the first point, we note that Pacheedaht and the federal government have been meeting to discuss concerns regarding the location of the shipping lanes near Swiftsure Bank. These marine safety-related discussions will continue as part of the newly formed Oceans Protection Plan (OPP) Working Group with Pacheedaht First Nation and Ditidaht First Nation and federal representatives from Transport Canada, Canadian Coast Guard and Fisheries and Oceans. The next meeting of the OPP Working Group is tentatively scheduled for October 23, 2017 in Duncan.
Regarding the third point, the Crown would like to better understand what Pacheedaht envisions as benefits accruing from the use of its territory in relation to marine shipping associated with RBT2.
In the Port’s assessment of impacts to rights, they list the following as mitigation measures in relation to marine shipping:
• Consultation on the development of a potential marine shipping activities communication plan that would provide affected Aboriginal groups with real-time information regarding the movement of RBT2-associated shipping traffic through the MSA, including: o the estimated time of arrival of RBT2-associated container ships and their expected duration of use of the shipping lanes for inbound and outbound movements; and o circumstances outside normal operations that might affect the expected frequency or concentration of RBT2-associated vessel traffic along the shipping routes (e.g., clearing backlogs in shipping traffic due to storms requiring ships to temporarily anchor before proceeding). • Consultation with the affected Aboriginal groups to identify measures that would reduce the impact of the international shipping lanes to fishing by Aboriginal groups.
The Crown has asked the Review Panel to consider an information request (CEAR #526) that requests further clarification as to why the Port’s analysis sees these mitigation measures as addressing the issues raised by Nations such as Pacheedaht during the environmental assessment process.
Accidents and Malfunctions: The Crown would like to understand, based on Pacheedaht’s knowledge of the territory, any ideas you have for prevention of accidents, including discussions around, if there is an incident, what mitigations and controls could be put in place to minimize consequences within your territory.
Next Steps:
The Agency is looking forward to the October 23rd, 2017 RBT2 meeting with Pacheedaht and Ditidaht to discuss the consultation process and this letter with Pacheedaht. We encourage you to provide any information you have at this point to the Review Panel as requested in their July 24th, 2017 letter.
The Crown has read the Pacheedaht First Nation Traditional Marine Use and Occupancy Study (TMUOS) 2014 – Final Report and has noted the disclaimer: “Pacheedaht First Nation retains copyright over this report and its contents. This report cannot be used for any purpose other than in relation to the National Energy Board and related regulatory processes for the proposed Kinder Morgan Canada Trans Mountain Pipeline Expansion Project, without the prior expressed written consent of Pacheedaht First Nation”. The Crown would like to know if Pacheedaht consents to using the information in this report for the purposes of the RBT2 environmental assessment and consultation processes.
Once the review panel has issued its report, including information on marine shipping traffic associated with RBT2, the Agency and other federal departments will consult with Pacheedaht on whether the review panel report accurately reflects your concerns. If you have any outstanding issues after reviewing the proposed mitigation in the panel report, you will have the opportunity to identify suggestions for addressing any outstanding issues with the federal review team for RBT2 at that time. We encourage you to bring proposed solutions to the review panel for their consideration. At that point, the Crown may further revise its depth of consultation assessment for Pacheedaht.
Thank you again for your participation in the environmental assessment process for RBT2. This letter is being provided to the Review Panel for posting on the registry. The Agency will be in touch shortly regarding the offer of additional funding to assist your continued participation in the process.
Sincerely,
Analise Saely Crown Consultation Coordinator cc: Bryan Nelson, VFPA David Grace, BC EAO Roberts Bank Terminal 2 Review Panel
Attachment 1: Updated Pacheedaht RBT2 Consultation Plan
Pacheedaht First Nation PROPOSED CONSULTATION WORK PLAN Environmental Assessment of the Proposed Roberts Bank Terminal 2 Project November 12, 2015September 28, 2017
1. Introduction
This proposed Aboriginal consultation work plan is intended to guide federal Crown-Aboriginal consultation activities during the environmental assessment of the proposed Roberts Bank Terminal 2 Project (the Project). It communicates the federal Crown’s objectives for consultation, the proposed structure for integrating consultation into the environmental assessment process, and the proposed consultation activities for the Pacheedaht First Nation. This document is intended to be a “living document” that will be updated by the Canadian Environmental Assessment Agency (the Agency) and reviewed with the Pacheedaht First Nation regularly during the environmental assessment of the proposed Project.
2. Description of the Proposed Roberts Bank Terminal 2 Project
Port Metro Vancouver wants to construct and operate a new three-berth marine container terminal located at Roberts Bank in Delta, British Columbia, approximately 35 kilometres south of Vancouver (Figure 1). The proposed Project would provide an additional 2.4 million units of container capacity at Roberts Bank per year. The full project description and Environmental Impact Statement (EIS) can be downloaded at www.ceaa-acee.gc.ca (Registry reference number 80054).
For additional information on the proposed Roberts Bank Terminal 2 Project, we encourage you to contact Port Metro Vancouver (the proponent) at:
Bryan Nelson Manager, Project Development – Aboriginal Consultation, Port Metro Vancouver 100 The Pointe, 999 Canada Place Vancouver, BC Canada V6C 3T4
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Figure 1: Regional Setting for the Proposed Roberts Bank Terminal 2 Project
3. Marine Shipping The potential effects on the environment of container ships coming and going from the proposed terminal through Juan de Fuca Strait and the Strait of Georgia will be taken into account during this environmental assessment (see figure 2 below). This is referred to in the Review Panel’s Terms of Reference as “the environmental effects of marine shipping associated with the Project which is beyond the care and control of the proponent and within the 12 nautical mile limit of Canada’s territorial sea.”
The federal government will use the environmental assessment process to the extent possible to consult with Aboriginal groups whose Aboriginal rights may be impacted by the Roberts Bank Terminal 2 Project and/or by marine shipping associated with the Project.
The government would like to understand concerns Pacheedaht First Nation may have about any increase in marine shipping in your territory resulting from the Roberts Bank Terminal 2 Project (see Figure 2). Pacheedaht First Nation is encouraged to provide to the Review Panel for its consideration information regarding any potential or established Aboriginal or Treaty rights that may be impacted by marine shipping associated with the Project, what those impacts may be and suggestions to avoid or reduce impacts from your Nation.
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Figure 2: Marine Shipping Associated with the Roberts Bank Terminal 2 Project
4. Aboriginal Groups The following is a list of Aboriginal groups that have been identified by the federal government for consultation related to the environmental assessment, on the basis that existing or potential Aboriginal or Treaty rights and interests may be affected by the Project and/or marine shipping associated with the Project. This list may change as more information becomes available throughout the process. The Crown will consult with any Aboriginal groups who have asserted or established Aboriginal or Treaty rights which may be impacted by the Project and/or marine shipping associated with the Project.
Aboriginal groups identified by the Agency to be consulted on the Project include:
• Stó:lō Tribal Council (Seabird Island First Nation, Scowlitz First Nation, Soowahlie Band, Kwaw'Kwaw'Apilt First Nation, Kwantlen First Nation, Shxw'ow'hamel First Nation, Chawathil First Nation, Cheam Indian Band); and • Stó:lō Nation (Aitchelitz First Nation, Leq’a:mel First Nation, Matsqui First Nation, Popkum First Nation, Skawahlook First Nation, Skowkale First Nation, Shxwha:y Village, Squiala First Nation, Sumas First Nation, Tzeachten First Nation, Yakweakwioose Band).
Aboriginal groups identified by the Agency to be consulted on the Project and marine shipping associated with the Project include:
• Tsawwassen First Nation; • Musqueam First Nation;
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• Semiahmoo First Nation; • Tsleil-Waututh Nation; • Stz’uminus First Nation; • Cowichan Tribes; • Halalt First Nation; • Lake Cowichan First Nation; • Lyackson First Nation; • Penelakut Tribe; • Métis Nation British Columbia; • Tsawout First Nation; • Pauquachin First Nation; • Tsartlip First Nation; • Tseycum First Nation; • Malahat First Nation;
Aboriginal groups identified by the Agency to be consulted on marine shipping associated with the Project include:
• Tsawout First Nation; • Pauquachin First Nation; • Tsartlip First Nation; • Tseycum First Nation; • Malahat First Nation; • Beecher Bay Indian Band (Scia’new Nation); • Esquimalt Nation (No'ilung Si'em 'i' sche'le'chu); • Songhees First Nation; • T'sou-ke First Nation; • Pacheedaht First Nation; • Ditidaht First Nation; and • Maa-nulth First Nations (Huu-ay-aht First Nations, Ka:'yu:'k't'h'/Che:k'tles7et'h First Nations, Toquaht Nation, Uchucklesaht Tribe and Ucluelet First Nation).
5. Federal Crown’s Consultation Objectives The federal Crown has identified the following as key objectives to achieve throughout the consultation and environmental assessment process:
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• To establish a positive and productive working relationship with Aboriginal groups during the environmental assessment and regulatory phases; • To communicate and listen to potentially adversely impacted Aboriginal groups about marine shipping associated with the Project and the way in which potential or established Aboriginal or Treaty rights and related interests may be affected throughout the environmental assessment and regulatory phases; • To create an environment that facilitates the identification of potential or established Aboriginal or Treaty rights and related interests that may be adversely impacted by marine shipping associated with the Project so that options can be considered to avoid, mitigate or accommodate adverse impacts to those Aboriginal or Treaty rights, where appropriate; • To work with Aboriginal groups to identify potential effects of changes to the environment from marine shipping associated with the Project on: o current use of lands and resources for traditional purposes; o health, cultural and socio-economic conditions; o potential or established Aboriginal or Treaty rights; and.
• To work with Aboriginal groups to identify and to consider options for avoiding or mitigating adverse impacts where appropriate. • To respond to specific requests by potentially impacted Aboriginal groups, address topic-specific issues related to marine shipping associated with the Project, if possible, and to gather input from potentially impacted Aboriginal groups regarding their concerns about marine shipping associated with the Project; • To cooperate with the Province of British Columbia on Aboriginal consultation; • To guide the proponent to gather information about potential adverse impacts from marine shipping associated with the Project on established or potential Aboriginal or Treaty rights; • To work with the Pacheedaht First Nation to respond to specific questions and requests regarding issues raised related to marine shipping associated with the Project; and • To listen carefully to concerns raised by Pacheedaht First Nation and meaningfully consider your feedback, perspectives and issues in order to inform decision-making.
In July 2017, the Government of Canada released “Principles Respecting the Government of Canada’s Relationship with Indigenous People” (see Annex 1). The federal Crown has stated that we are working towards reconciliation, and in the context of the environmental assessment review, consideration is being given to making both policy and legislation changes to enhance the Crown’s relationship with Indigenous Peoples. Until a new environmental assessment
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For the purposes of the environmental assessment for Roberts Bank Terminal 2 Project, the Agency would like to work towards these principles in our consultation process with Pacheedaht First Nation. Specifically, the Agency would like to better know how your Nation wants to organize itself in its relationship with the Crown based on recognition of Indigenous government, laws and rights for the purposes of this environmental assessment process, and any suggestions regarding how we can work together better during the environmental assessment process for the proposed Project.
6. Pacheedaht First Nation Consultation Objectives
This section is intentionally left blank as the federal government would like to invite Pacheedaht First Nation to share your consultation objectives. You may also communicate your objectives directly to Analise Saely at
7. Integrating Consultation into the Environment Assessment
Table 1 provides a description of the main steps in the federal environmental assessment process and a description of how the federal Crown proposes to integrate consultation activities into those steps. This table describes what the Pacheedaht First Nation should receive, have access to or expect from the Agency, on behalf of the federal Crown, and what the Pacheedaht First Nation could share and provide during the environmental assessment process.
Environmental assessments conducted by review panel are subject to timelines under the Canadian Environmental Assessment Act, 2012 (CEAA 2012). An environmental assessment by review panel must be completed and an environmental assessment decision statement issued by the Minister of the Environment within 24 months of the date of the referral of the project to a review panel. This timeline does not include the time taken by the proponent to provide any information that is requested by the Agency, the review panel or the Minister of the Environment.
The Roberts Bank Terminal 2 Project is currently in the 24 month period. The Minister of the Environment referred the project to review panel on January 7, 2014. Consultation activities with Pacheedaht First Nation, as proposed, are in keeping with these timelines.
While information and concerns relating to many issues associated with the potential impacts of marine shipping associated with the Project may be brought forth and addressed during the various stages of the environmental assessment
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process, it may not be feasible to address all of these concerns through this process. Some issues and concerns may best be discussed and addressed in other ways, for instance, through the regulatory approvals process that may follow the environmental assessment.
Marine shipping beyond the care and control of Port Metro Vancouver will not be subject to conditions in the decision statement issued to Port Metro Vancouver by the Minister of the Environment under CEAA 2012, should the Project be authorized to proceed. However, inclusion of this matter within the environmental assessment for the Roberts Bank Terminal 2 Project will provide the federal government with information on the potential effects of increased marine shipping for use by programs and activities within federal jurisdiction.
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Table 2: Integrating Consultation into the Environmental Assessment (Adapted from the BC First Nations Environmental Assessment Technical Working Group Toolkit Workshop)
Environmental Description of the Environmental What the Pacheedaht First Nation should What the Pacheedaht First Nation Assessment Step Assessment Step/Phase receive, have access to or expect FROM may provide TO the federal Crown/ the federal Crown Review Panel (or DO) Government The Agency assesses the • Opportunity to review and comment on • Comments on the marine shipping Completeness completeness of the proponent’s the completeness of the proponent’s addendum and the supporting Review on the Marine marine shipping addendum. marine shipping addendum and studies and the completeness of the Shipping Addendum supporting studies; proponent’s responses to your The marine shipping addendum • Opportunity to review and comment on concerns; identifies potential adverse the completeness of the proponent’s • Provide your thoughts on the environmental effects of marine responses to issues raised by Aboriginal accuracy of the proponent’s shipping associated with the groups, the public, federal and provincial information about issues you have Project, including the agencies. raised and your opinion on any environmental effects of • Written response outlining how your proposed ways of addressing those malfunctions or accidents and any comments on the completeness of the impacts. cumulative environmental effects, EIS were considered. the significance of those effects, suggested mitigation measures and the possible requirements of any follow-up program that may be required.
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Environmental Description of the Environmental What the Pacheedaht First Nation should What the Pacheedaht First Nation Assessment Step Assessment Step/Phase receive, have access to or expect FROM may provide TO the federal Crown/ the federal Crown Review Panel (or DO) The review panel assesses the • Provision of information on panel process; • Decide if you want to participate in sufficiency of the EIS as required • Directions on how to participate in the the panel sufficiency review process. by the Terms of Reference. comment period on the EIS (provided • Provide your thoughts on the directly by the review panel); accuracy of the proponent’s • Notice of public consultation opportunities information about issues you have and public hearings held by the panel raised and your opinion on any (provided directly by the review panel). proposed ways of addressing those • Crown responses to issues that impacts. Pacheedaht First Nation has raised • Provide input to the panel on Panel Environmental during the process. potential environmental effects of the Impact Statement proposed Project or marine shipping (EIS) sufficiency associated with the Project, review proposed mitigation measures, follow‐up programs, or any other aspect of the environmental assessment as well as input on information provided by others in the process. • Provide any information relating to the justification of significant adverse environmental effects to the Review Panel • Decide if you want to present your The review panel will hold a public • Directions on how to request to views to the review panel; hearing in a manner that offers any participate in the hearing and confirmation • Provide information in writing to the Public Hearing interested party an opportunity to of participation, if permitted by the review review panel and, if permitted by the participate in the environmental panel). review panel, in person, on any assessment. issue within the panel’s mandate.
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Environmental Description of the Environmental What the Pacheedaht First Nation should What the Pacheedaht First Nation Assessment Step Assessment Step/Phase receive, have access to or expect FROM may provide TO the federal Crown/ the federal Crown Review Panel (or DO) Panel Report The review panel submits its report • Opportunity to review and comment on • Comments on the panel report. to the Minister of the Environment, the panel report. which includes its conclusions, recommendations and rationale regarding the significance of the adverse environmental effects, mitigation measures, and follow up report. The panel may include accommodation measures related to any potential adverse impacts on potential or established Aboriginal or Treaty rights.
Minister’s EA Taking into consideration the report • An opportunity to be consulted during the • Comments on draft potential Decision of the review panel, the Minister of development of potential conditions conditions related to the Project. the Environment determines related to the Project to be included in the • Write the section of the Crown whether the project is likely to decision statement, should the project be Consultation Report (which goes to cause significant adverse allowed to proceed; decision makers) that describe who environmental effects, taking into • A draft Crown assessment of impacts to the Pacheedaht First Nation is, your account mitigation measures. If Pacheedaht First Nation rights; rights and include a submission on significant adverse environmental • Discussions with the federal review team your views about the Project. effects are likely, the federal on accommodation options, as • Comments on the Crown’s Cabinet decides whether these appropriate; assessment of impacts to the effects are justified in the • Notification of the Minister’s EA decision. Pacheedaht First Nation’s rights, circumstances. A decision including any opinions on justifiability statement is issued that sets out of any potential infringements to the decision and, as necessary, rights. associated conditions with which the proponent must comply should the Project be allowed to proceed. Throughout the Environmental Assessment • Exchange of information, notifications and • Share information regarding the correspondence; potential adverse impacts of marine • Opportunity to provide traditional shipping associated with the Project knowledge about the environment and on your Aboriginal rights and 10
Environmental Description of the Environmental What the Pacheedaht First Nation should What the Pacheedaht First Nation Assessment Step Assessment Step/Phase receive, have access to or expect FROM may provide TO the federal Crown/ the federal Crown Review Panel (or DO) possible effects to be used in the traditional uses; assessment; • Provide any traditional knowledge • Opportunity to identify issues to be that may improve the environmental addressed, as appropriate, through assessment; consultation on all aspects of the • Provide recommendations on how to environmental assessment; avoid, mitigate or compensate for • Opportunity to collaborate to identify impacts to your Aboriginal rights; potential adverse impacts to Aboriginal • Request one-on-one meetings with rights, traditional uses, and generating federal representatives to discuss options for accommodation; your issues of concern; • Opportunity to collaborate to generate • Request reasons for federal Crown options for accommodation; decisions. • Consideration of changes to proposed government action (e.g. attaching terms and conditions to permits or authorizations, where possible and appropriate); • Opportunity for additional meetings with the federal Crown to address concerns as appropriate.
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8. Federal Agencies Roles and Responsibilities Environmental assessment type: Environmental assessment by review panel
Potential decisions by federal agencies (information to be confirmed as environmental assessment progresses):
Federal Agencies Roles and Responsibilities Federal Agency Roles and Responsibilities Canadian Environmental Crown Consultation Coordinator Assessment Agency responsible for coordinating federal Name: Analise Saely Crown consultation within the Email: Analise.Saely@ceaa- environmental assessment process. acee.gc.ca
Environment Canada Federal Authority responsible for Name: June Yoo Rifkin Species at Risk Act (SARA), Section Email: [email protected] 73(1) or 74 and Canadian
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Federal Agency Roles and Responsibilities • address liability and compensation for damages caused by ship source oil pollution. Fisheries and Oceans Canada Federal Authority responsible for Name: Tessa Richardson Fisheries Act, Section 35(2)(b) Email: Tessa.Richardson@dfo- Authorization and for Section 73(1) or mpo.gc.ca 74 of the Species at Risk Act (SARA)
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Annex 1: Principles Respecting the Government of Canada’s Relationship with Indigenous People
The Government of Canada recognizes that:
1. All relations with Indigenous peoples need to be based on the recognition and implementation of their right to self-determination, including the inherent right of self-government.
2. Reconciliation is a fundamental purpose of section 35 of the Constitution Act, 1982.
3. The honour of the Crown guides the conduct of the Crown in all of its dealings with Indigenous peoples.
4. Indigenous self-government is part of Canada’s evolving system of cooperative federalism and distinct orders of government.
5. Treaties, agreements, and other constructive arrangements between Indigenous peoples and the Crown have been and are intended to be acts of reconciliation based on mutual recognition and respect.
6. Meaningful engagement with Indigenous peoples aims to secure their free, prior and informed consent when Canada proposes to take actions which impact them and their rights on their lands, territories, and resources.
7. Respecting and implementing rights is essential and that any infringement of section 35 rights must by law meet a high threshold of justification which includes Indigenous perspectives and satisfies the Crown’s fiduciary obligations.
8. Reconciliation and self-government require a renewed fiscal relationship, developed in collaboration with Indigenous nations, that promotes a mutually supportive climate for economic partnership and resource development.
9. Reconciliation is an ongoing process that occurs in the context of evolving Indigenous-Crown relationships.
10. A distinctions-based approach is needed to ensure that the unique rights, interests and circumstances of the First Nations, the Métis Nation and Inuit are acknowledged, affirmed, and implemented.
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