Attn.: Debra Myles, Panel Manager I'm Attaching My Community's

From: Ruth Sauder To: Panel RBT2 / Commission RBT2 (CEAA/ACEE) Cc: Saely,Analise [CEAA]; [email protected]; "Scoble, Jemma"; "Jennifer Griffith"; <email address removed> "Chip Seymour"; <email address removed>; <email address removed> "Natalie Anderson"; <email address removed> <email address removed> "Jack Smith" Subject: RBT2 - Penelakut Sufficiency Comments to the Panel Date: October 26, 2016 4:40:45 PM Attachments: Penelakut Sufficiency Comments to RBT2 Panel Oct 26 2016.pdf Attn.: Debra Myles, Panel Manager I’m attaching my community’s comments on sufficiency to this email. Please note that we have worked closely with the other local Tribes that form part of our Tribal group, and as a group we call ourselves the Cowichan Nation Alliance (CNA), so we have also included in our attached table of outstanding information requests, matters previously submitted by the CNA, Cowichan Tribes, and Stz’uminus FN on their own behalf and on behalf of the other CNA Tribes. We appreciate the Panel’s time and attention in reviewing these matters of concern for our community. Given the size of the attachment it would be useful if we can get confirmation of receipt of this email to confirm it has made it through your servers. Best Regards Ruth Sauder Penelakut Tribe Administrator Pene[a trrri6e Oct. 26th, 2016 Via email to: [email protected] Debra Myles Review Panel Manager, Roberts Bank Terminal 2 Project c/o CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY 160 Elgin Street, 22nd Floor, Ottawa ON K1A OH3 Re: Penelakut Tribe comments on Roberts Bank Terminal 2 Environmental Impact Statement I. Background This letter provides the Penelakut Tribe's comments on the sufficiency of the Environmental Impact Statement (EIS) and additional information currently in the record for assessing the effects of the Roberts Bank Terminal 2 (RBT2) Project on the environment and on the Penelakut Tribe's Aboriginal rights. 1. Who is the Penelakut Tribe? The Penelakut Tribe is a 'Band' as defined in the Indian Act. The Penelakut Tribe currently has reserves located on Penelakut Island, Galiano Island, and Tent Island, and the Tsussie Reserve at the Bonsall Creek estuary on southeast Vancouver Island. Penelakut's Reserve land is directly across the Salish Sea from the proposed RBT2 . The Penelakut Tribe is part of the historic Cowichan Nation, which was an aboriginal people, nation or group at the assertion of Crown sovereignty over British Columbia in 1846 and at European contact in the early 1790s. Penelakut was one of the named Cowichan Nation communities that occupied lands at the south shore of Lulu Island on the main (south) arm of the Fraser River, before, at, and after 1846 and the early 1790s. The Lulu Island village at Tl'uqtinus was exclusively occupied by the Cowichan Nation at all relevant times for establishing aboriginal rights and title on the south arm of the Fraser River, and aboriginal rights at the mouth of the south arm of the Fraser River including the area of the RBT2 project. The ancestors of the Penelakut Tribe engaged in fishing within the RBT2 project area before, at and after 1846 and the early 1790s, and the Penelakut Tribe currently continues to engage in extensive fishing activities in the 1 Box 360 Chemainus, BC VOR l KO Phone: (250) 246-2321 Fax: (250) 246-2725 RBT2 project area. Penelakut Tribe and the other Cowichan Nation bands are actively engaged in mainland land and fishing rights recovery with the reasonable expectation that their future use of this area for fishing, harvesting, sea mammal and bird hunting, will be even greater than it is today. The areas used by the Penelakut Tribe and other Cowichan Nation bands include the Local Assessment Area (LAA) and a significant portion of the Regional Assessment Area (RAA) associated with RBT2. This area coincides with the Hul'qumi'num Treaty Group Asserted Traditional Territory, as shown on the map included in the RBT2 EIS at Figure No. 32-5. 2. Penelakut Tribe Strength of Claim The Penelakut Tribe asserts both Aboriginal title to and Aboriginal rights in the Roberts Bank area. Canada has determined within the context of the marine shipping route for the Kinder Morgan Trans Mountain Expansion Project that the Penelakut Tribe has a strong prima facie claim to asserted rights within portions of the marine shipping route. 1 This was described in more detail as "pre-contact traditional territory of the Penelakut and where there is information of their historic use as part of their traditional seasonal round, including areas in the Strait of Georgia proximal to, and within the southern reaches of, the southern arm of the Fraser River. .. " Further, the BC Environmental Assessment Office has assessed the strength of the Penelakut Tribes claim of Aboriginal rights to fish, gather and hunt in areas in proximity to the proposed George Massey Tunnel Replacement project, including the South Arm of the Fraser River, as strong.2 The BC EAO has assessed the Penelakut Tribe claim of Aboriginal title as moderate. The Penelakut Tribe disagrees with BC's assessment of its Aboriginal title claim as moderate, and asserts that this is a strong claim. The use and occupation of the Fraser River area on an annual basis is documented in the Province's "Fraser River Head Lease Areas, Review of Ethnographic and Historical Sources" Report, dated July 10, 2014 and revised September 11, 2014. This annual migration to village sites on the Fraser River for resource harvesting amounts to use and occupation for the purpose of establishing Aboriginal title. 1 Canadian Environmental Assessment Agency "CEAA" letter to Penelakut Tribe, September 15, 2016. 2 BC EAO draft Assessment Report, Aboriginal Consultation Report section, George Massey Tunnel Replacement Project. 2 The Penelakut Tribe is currently seeking a declaration of Aboriginal Title to the Tl'uqtinus Lands on Lulu Island and of Aboriginal fishing rights to the South Arm of the Fraser River. 3. Penelakut Practices Historic documentation unequivocally places the Penelakut Tribe in and around Roberts Bank at the time of contact and in 1846. It demonstrates that the Penelakut Tribe had a village on the south Arm of the Fraser River, which was accessed regularly via Canoe pass. It also demonstrates that the Penelakut Tribe regularly engaged in traditional use in the Roberts Bank, Fraser Delta and Fraser River area, including but not limited to: • Fishing (including sockeye, sturgeon, shellfish) • Plant harvesting (including berries and wapato) • Trapping (beaver) • Hunting (ducks, geese) 4. Penelakut Crab Fishery The Penelakut Tribe relies on crab taken from the RBT2 area to support its food, social and ceremonial fishery and its traditional way of life. Much of Penelakut Territory is subject to Fisheries and Oceans Canada consumption advisories due to Dioxin contamination. As a result, RBT2 is the only area within Penelakut Territory where the Penelakut people feel confident that the crab they obtain can be eaten in its entirety. As a result of consumption advisories, crab taken from other areas of Penelakut Territory can only be consumed after the organs are removed. Crab organs, however, form a part of the Penelakut Tribe traditional diet and provide necessary nutrition.3 At the time of this writing, Fisheries and Oceans Canada had the following dioxin contamination consumption advisories in Area 17 of Penelakut Territory: Crofton • Consumption of crab hepatopancreas in a portion of Stuart Channel should not exceed 40 g/week. • This area of Stuart Channel is bounded on the north by a line from Donckele Point on Kuper /sland4 to the point at the southeastern entrance to Preedy Harbour on Thetis Island, thence to the most southern point of Dayman Island, thence to the most southern point of Scott Island, westerly to Sharpe Point on 3 For more detail, see the Penelakut Tribe's January 4, 2016 letter to the proponent, CEAA Registry Doc. #396. 4 Canada is still using the former name for the Penelakut Tribe's Penelakut Island, formally renamed by BC several years ago. 3 Vancouver Island, thence southwesterly across Ladysmith Harbour to a point on the shore 230° true from Sharpe Point; thence southerly along the shore of Vancouver Island to Grave Point; thence north of a line to Erskine Point on Saltspring Island; thence northerly along the shore to Parminter Point, thence west of a line to Josling Point on Kuper Island, thence northerly along the shore to the point of commencement at Donckele Point. Nanaimo (Harmac) • Consumption of crab hepatopancreas harvested in the waters west of a line from Reynolds Point to Miami Islet to a point at the entrance to Kulleet Bay true south of Deer Point, should not exceed 105g/week. In addition to these closures due to dioxin contamination, log boom water lots in the Chemainus River Estuary and Bonsall Creek Estuary5 have eliminated these areas as viable harvesting grounds, due to both obstruction and de-oxygenation. As a result, the Penelakut Crab fishery at Roberts Bank forms a significant and central element of the Penelakut Tribe's food social and ceremonial fishery and the Penelakut Tribe's exercise of its Aboriginal rights. 5. How will the Penelakut Tribe be affected by the Project? The Penelakut Tribe stands to be impacted from all elements of the Project: construction, operations and accidents/malfunctions. In addition, the Penelakut Tribe stands to be impacted by operations and accidents/malfunctions from the marine shipping component. RBT2 will displace the Penelakut Tribe from an important crab fishing area, both during construction and operation, as a result of footprint impacts.6 In addition, the vessel traffic associated with construction and operation of the terminal will increase navigational conflicts for Penelakut Tribe members engaged in marine harvesting at Roberts Bank.? The marine shipping traffic will also increase navigational conflicts for Penelakut Tribe members travelling to marine harvesting sites at Roberts Bank, as this requires crossing the Salish Sea and the shipping lanes.

Load more