Hearing Order MH-052-2018 Board File: OF-Fac-Oil-T260-2013-03 59

NATIONAL ENERGY BOARD

IN THE MATTER OF the National Energy Board Act, R.S.C. 1985, c. N-7, as amended (“NEB Act”) and the Regulations made thereunder and the Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52 (“CEAA 2012”);

AND IN THE MATTER OF an application by Trans Mountain Pipeline ULC as General Partner of Trans Mountain Pipeline L.P. (collectively “Trans Mountain”) for a Certificate of Public Convenience and Necessity (“CPCN”) and other related approvals pursuant to Part III of the NEB Act for the Trans Mountain Expansion Project (“Project”);

AND IN THE MATTER OF the National Energy Board’s reconsideration of aspects of its Recommendation Report (“Report”) as directed by the Governor in Council through Order in Council P.C. 2018-1177 (the “Reconsideration”).

ARGUMENT-IN-CHIEF OF THE SQUAMISH NATION January 22, 2019

TABLE OF CONTENTS

PART 1 – Overview...... 1 PART 2 – STATEMENT OF FACTS AND EVIDENCE ...... 4 A. Squamish Nation ...... 4 B. Squamish Nation Reserves and Village Sites ...... 5 C. Significance of the Project-related marine shipping to Squamish ...... 7 D. Squamish Seasonal Round ...... 9 E. Squamish Nation Aboriginal rights and interests ...... 10 1. Squamish self-government rights ...... 10

2. Squamish harvesting rights ...... 12

3. Squamish’s right to fish is essential to their culture ...... 14

4. Squamish’s right to navigate their Territory...... 15

5. Squamish cultural and spiritual practices ...... 16

F. Squamish Marine Dependent Economic Interests ...... 19 G. Squamish Oral Evidence on the Impacts of Project-Related Marine Shipping ...... 19 H. Squamish Expert Evidence on the Impacts of Project-related Marine Shipping 21 1. Spilled diluted bitumen will submerge in Burrard Inlet within one to two days and cause irreversible environmental effects ...... 22

2. Trans Mountain’s ecological risk assessment does not provide an acceptable basis for evaluating the ecological risks of an oil spill from Project-related tankers ...... 24

3. Environmental effects of a diluted bitumen spill in the Fraser River estuary would be catastrophic ...... 26

4. Oil Spills from the Project-related marine shipping will happen ...... 27

5. Gaps in oil spill response in the Nation’s Territory mean spills cannot be cleaned-up 30

6. The need for the Project must be re-evaluated ...... 34

I. Canada’s Approach to Reinitiating Phase III Consultation ...... 36

1

J. Correspondence with the Crown ...... 37 K. Legal Framework for the Reconsideration ...... 40 1. Regulatory Scheme ...... 40

2. Scope of the Reconsideration ...... 41

3. Limited List of Issues and Constrained Timeline ...... 43

4. Constitutional Obligations of the Board ...... 45

L. The Board Should recommend that the Project is likely to cause Significant Adverse Environmental Effects that Cannot be justified ...... 46 1. Introduction ...... 46

2. Oil Spills from the Project are likely to happen ...... 47

3. Oil Spills from the Project will likely cause significant adverse environmental effects 50

(a) Diluted Bitumen will submerge in the Fraser River Estuary in one or two days ... 50

(b) Environmental effects of spills will be high magnitude and of long duration ...... 51

4. Marine Shipping will likely cause significant adverse environmental effects ...... 56

M. Failure to Assess the Alternative Means of Carrying out Project-related Marine Shipping 59 N. The Significant Adverse Environmental Effects that the Project is likely to cause Cannot be Justified ...... 62 O. Implications of Adverse Effects and Public Interest ...... 63 P. The Board cannot Recommend that the Project is in the Public Interest as Canada has not Fulfilled its Obligations to Consult the Nation ...... 63 1. Decision of the Federal Court of Appeal ...... 63

2. Substantive Consultation with the Nation on the Project has not begun ...... 65

3. The Reconsideration hearing has not provided for Meaningful Engagement ...... 68

(a) Failure to consult on the Scope of the Reconsideration and to provide the Nation with all necessary information ...... 68

(b) Failure to provide Strength of Claim Information ...... 71

2 (c) Failure to provide an Impact Assessment specific to the Nation’s Rights ...... 73

(d) Failure of Accommodation ...... 75

(e) The Board cannot rely on Trans Mountain to Satisfy the Crown’s Duty to Consult 76

4. Consequences of Canada’s Failure to Fulfill the Duty to Consult and Accommodate 77

Q. Recommendations ...... 78 TABLE OF AUTHORITIES ...... 79

3

PART 1 – OVERVIEW

1. The Squamish Nation’s “home” on the southwest coast of what is now British Columbia is the proposed marine terminus for the Project. The Nation’s people, and the lands, waters, and resources upon which they depend, will be directly and significantly adversely impacted by the Project.

2. Extensive Project infrastructure, including the new three-berth Westridge Marine Terminal, is proposed to be located in the heart of Squamish territory. The substantial increase in tanker traffic to a minimum of 34 tankers per month would result in tankers transiting Burrard Inlet, laden with diluted bitumen in close proximity to three Squamish reserves through to the Salish Sea, increasing the risks of spills or other accidents that would be catastrophic for the Squamish and the continued meaningful practice of their rights.

3. Squamish was one of the applicants that challenged the original approval of the Project before the Federal Court of Appeal (“FCA”). The FCA agreed with the applicants in Tsleil- Waututh Nation v. Canada (Attorney-General), 2018 FCA 153 that the Board unjustifiably excluded Project-related shipping from the Project’s definition, which undermined the central finding of the Report that the Project was not likely to cause significant adverse environmental effects, and that Canada’s consultation for the Project fell well below the standard required by the Supreme Court of Canada.

4. In the Reconsideration, the Board is required to reconsider the environmental assessment of the Project in light of the inclusion of Project-related marine shipping in the Project’s definition, and provide updated recommendations to the Governor in Council on whether the significant adverse environmental effects that the Project-related marine shipping is likely to cause can be justified and whether the Project is in the public interest. In order for this new panel to provide the Governor in Council with the information necessary to make a valid decision on the Project, the panel must necessarily reweigh the benefits and burdens of the Project against the new and updated evidence tendered by all parties and intervenors in this Reconsideration.

5. In the Reconsideration, the Board must further reconsider whether the Government of Canada (“Canada”) has discharged its constitutional obligations to the Nation. The Project

1 cannot be in the public interest if Canada’s consultation obligations are outstanding. Canada has acknowledged that it owes Squamish a constitutional duty of consultation and accommodation at the deep end of the consultation spectrum for the Project.

6. Burrard Inlet and the Salish Sea are central to Squamish identity and culture. The Nation’s evidence in the Reconsideration affirms that the Squamish continue to occupy, and be stewards of, their territory, and harvest resources throughout their territory for food, social and ceremonial purposes. Squamish rely heavily on the marine and freshwater resources within their territory to practice their Aboriginal rights. Maintaining access to these resources, like sockeye salmon, remains fundamentally important to the Squamish

7. The Nation’s evidence in the Reconsideration further demonstrates that the Squamish are uniquely vulnerable to the impacts of the Project-related marine shipping and will bear the burden of the effects and risks. The expansion of the Westridge Marine Terminal and tanker traffic would significantly and adversely impact the use of the Nation’s lands, water and resources in and around Burrard Inlet for traditional and contemporary purposes for the life of the Project, and would permanently destroy the cultural connection to the southern resident killer whale and destabilize the reliance on the marine environment. A spill of diluted bitumen in the Nation’s waters would be devastating to Squamish people, territory, culture and identity, causing long-term effects to the practice of the Nation’s Aboriginal rights that cannot be mitigated.

8. Canada was required to consult with Squamish about these potential impacts of the Project on Squamish and how these impacts may affect Squamish’s Aboriginal rights, title and reserve interests, and to address these impacts in a manner consistent with the honour of the Crown and reconciliation. Specifically, Canada was required to correct the deficiencies in consultation as found by the FCA and engage in a meaningful two-way dialogue with the Nation. Canada has failed to do so.

9. The Board previously found in its review under the NEB Act that the Project-related marine shipping would likely cause significant adverse effects in four respects – greenhouse gas emissions from Project-related marine vessels, to southern resident killer whales and related Indigenous cultural uses, and in the case of a large or credible worst-case oil spill.

2 10. The Board is now required to apply the mandatory factors under s. 19 of CEAA 2012 to Project-related marine shipping. The expert evidence on the Reconsideration confirms these significance findings and reveals that the Board’s finding that spills are unlikely is no longer accurate or reliable, and that the environmental effects of such spills, even small to medium sized spills, would be more severe and long-term than as previously found. The evidence further establishes that there are not sufficient resources to respond to a diluted bitumen spill, and that the changes to diluted bitumen density and viscosity within the first few days of a release may render oil spill response entirety ineffective, resulting in significant amounts of diluted bitumen being left in the marine environment.

11. These significant adverse environmental effects the Project-related marine shipping is likely to cause in the chosen location cannot be justified, given: i) the failure of Trans Mountain to assess alternative means of carrying out the Project-related marine shipping and alternate marine terminuses that are technically and economically feasible, and the environmental effects of such alternative means; and ii) new and updated evidence on the economics of the Project.

12. Entirely missing from the evidence in the Reconsideration is a comparative analysis of alternate marine terminals and the associated shipping routes to enable the Board to determine whether there are alternate means of carrying out the Project-related marine shipping that would reduce these findings of significant adverse environmental effects. The failure to provide evidence to satisfy the mandated factors under s. 19 of CEAA 2012 means that the Board cannot complete the environmental assessment. This omission is fatal to Trans Mountain’s application.

13. Further, developments since the original OH-001-2014 proceeding have rendered Trans Mountain’s evidence on the economics of the Project stale-dated, inaccurate and unreliable. Squamish’s evidence shows that the Project is no longer needed or economically viable.

14. In reweighing the Project benefits and burdens in the justification analysis, it is clear that the burdens of the Project as proposed in the location proposed now clearly outweigh the benefits. As such, the Board should recommend to the Governor in Council that pursuant to s.29(1)(a) of the CEAA 2012, the Project is likely to cause significant adverse environmental effects that cannot be justified; and pursuant to s. 52(1)(a) of the NEB Act, a CPCN should not be issued for the Project because it is not in the public interest.

3 PART 2 – STATEMENT OF FACTS AND EVIDENCE

A. SQUAMISH NATION

15. Squamish is a Coast Salish First Nation and a band as defined in the Indian Act, R.S.C. 1985, c. I-5 comprised of over 4053 registered members. Squamish are an Aboriginal people within the meaning of s. 35(1) of the Constitution Act, 1982.1

16. Since a time before contact with Europeans, Squamish have used and occupied lands and waters on the southwest coast of what is now British Columbia extending from the Lower Mainland of British Columbia, and including Burrard Inlet, English Bay, Howe Sound, the Squamish Valley and north to Whistler (the “Territory”).2

17. The boundaries of Squamish Territory encompass all of Burrard Inlet, English Bay and Howe Sound, as well as the rivers and creeks that flow into these bodies of water.3

18. Squamish has occupied, governed and sustained themselves physically, culturally and spiritually since time immemorial from the areas of their Territory that would be impacted by the Project. Squamish asserts Aboriginal rights, including title and self-governance rights, within these areas pursuant to section 35(1) of the Constitution Act, 1982. Squamish has never surrendered title or rights over its Territory.4

19. Further, since a time before contact with Europeans, Squamish regularly travelled to and fished in the Fraser River and assert Aboriginal rights to fish in the Fraser River, including at its mouth and on its tributaries.5

20. Squamish continue to occupy, and be stewards of, their Territory, and harvest resources throughout their Territory, among other places, the Capilano River at the entrance of Burrard Inlet, the Fraser River, and Howe Sound for food, social and ceremonial purposes. Squamish are

1 A96457-3 Squamish Nation Direct Evidence (“Squamish Nation Direct Evidence”) (A6L6J5), para. 2 2 Squamish Nation Direct Evidence (A6L6J5), para. 3 3 Squamish Nation Direct Evidence (A6L6J5), para. 4 4 Squamish Nation Direct Evidence (A6L6J5), para. 5 5 Squamish Nation Direct Evidence (A6L6J5), para. 6

4 protectors of the Salish Sea and rely heavily on the marine and freshwater resources within their Territory to practice their Aboriginal rights.6

B. SQUAMISH NATION RESERVES AND VILLAGE SITES

21. Squamish has 24 reserves located throughout their Territory that are extensively used and occupied by their members.7

22. Squamish has three reserves located in and at the entrance to Burrard Inlet: Seymour Creek Reserve No. 2 (Ch’ích’elxwi7kw) on the north shore close to the Westridge Marine Terminal, Mission Reserve No. 1 (Eslhá7an), and Capilano Reserve No. 5 (Xwmech’stn). These reserves could be directly impacted by any accidents or malfunctions associated with the Project. Also affected are Kitsilano Reserve No. 6 (Sen̓ ákw) near the entrance to False Creek, and at least three other waterfront reserves in Howe Sound.8

23. However, not all Squamish villages in the Project area were designated as reserves. For example, Squamish village sites in what is now Stanley Park were never granted reserve status. Further, Squamish people were removed from certain sites as the City of Vancouver expanded. In 1913, the Squamish inhabitants of their reserve at Sen̓ ákw (Kitsilano IR No. 6) were removed from the site and relocated to the villages of Xwmech’stn (Capilano) and Eslhá7an (Mission) on the north shore of Burrard Inlet. In 1946 their ancestors were compelled to surrender most of that 80-acre IR No. 6 but Squamish have maintained a 10-acre portion of it.9

24. There are former Squamish villages adjacent to the location of the proposed marine terminal for the Project, including Temtemixwtn (Belcarra) and Titemtsen (Port Moody), and along the tanker route.10

6 Squamish Nation Direct Evidence (A6L6J5), para. 7 7 Squamish Nation Direct Evidence (A6L6J5), para. 8 8 Squamish Nation Direct Evidence (A6L6J5), para. 9 9 Squamish Nation Direct Evidence (A6L6J5), para. 10 10 Squamish Nation Direct Evidence (A6L6J5), para. 11; C319-27-2 – 1-1 Squamish Traditional Use and Occupancy Study (“Squamish Traditional Use and Occupancy Study”) – Part 1 (A4L7E3), p. 31; Part 2 (A4L7E4), Map 1; C319-10-1 Squamish Nation – Power Point Presentation Oral Aboriginal Traditional Evidence (A4D5J2), p. 6

5 25. Generations of Squamish people have spoken about the importance of Burrard Inlet and English Bay as a “home” of the Squamish people. As reported in Canada (A.G.) v. Canadian Pacific Ltd., in 1886, when the Canadian Pacific Railway was seeking to obtain the entirety of the Squamish Nation’s Kitsilano Reserve on False Creek for its western terminus, Squamish Chief Chepwhaim protested these efforts in an address given to and recorded by Indian Commissioner I.W. Powell who visited the Reserve on June 15, 1886. A portion of that address was recorded by Powell as follows:

The following remarks of the Chief Chepwhaim are about the same as those made by other speakers who followed him.

The Chief said, I am glad to see you, I know you come as their friend, and all my people welcome you. I have heard you speak and these are their words to you. We do not wish to prevent the railway from entering and passing through their land, and we are willing that the Company should have right of way. They now own every thing here, but why do they wish to take, after they have come on to their land, the little we have left.

… Does the Queen wish to give us land in order to make their hearts sick by allowing it to be taken away from us afterwards. … It was the Queen's heart to treat us well (justly) when we received her promise that this land would always be kept for us.

Does she wish to break her word and take all their land back. I cannot think this, or you would not be here. We want you to write strongly about this land it is their home - their ancestors are buried here. We are willing to let the railroad pass through their land but no more. We hope you can protect us. My people implore you to do this - we wish to cultivate this land and to look upon it as the home of ourselves and their children who come after us.11

26. That railway, whose terminus was ultimately located in Coal Harbour, would initiate massive change and industrial and urban development in and around Burrard Inlet. Almost 130 years after Chief Chepwhaim’s address to Commissioner Powell and the coming of the railway, Squamish Elder David Jacobs, Paitsmauk, gave evidence in the present matter before the NEB about the continued significance of Burrard Inlet as “home” to the Squamish people, despite this industrial development:

All we see outside from their windows looking down the beach are freighters, ships, in and out. That’s why I’m afraid today what the damage that if anything happened, it would destroy their home because that harbour, that bay there that’s the home of the Squamish people. It’s always been a home, their home.

11 Canada (A.G.) v. Canadian Pacific Ltd., 2002 BCCA 478 (Squamish Indian Band v. Canadian Pacific Ltd., [2002] B.C.J. No. 1943), para. 38

6 We look at the maps. We show the territories of the Squamish. I don’t like to use the word “territory”. I say, “That is their home. That is their home”. That land will never go away. Their Squamish people will never go away, so we got to be careful what we do today. […]

Just one thing that I always think about. I think about love and their homelands and their villages. It's love for that. It's like the wind. It's still with us. It'll never go away.12

C. SIGNIFICANCE OF THE PROJECT-RELATED MARINE SHIPPING TO SQUAMISH

27. A significant part of the Project, the marine terminal and associated tanker traffic, is to be situated in the heart of Squamish Territory. Burrard Inlet and the Salish Sea are central to Squamish identity and culture. They are also key to the modern economic success of the Nation.13

28. The majority of Squamish members live in or near what is now North Vancouver and West Vancouver both on and off reserve within close proximity to the terminal and tanker routes. The majority of those members who live on reserve live on one of the reserves on the north shore of Burrard Inlet. The Squamish Council and main administrative office is at Ch’ích’elxwi7kw – Seymour Creek Reserve across the Inlet from the Westridge Marine Terminal.14

29. In addition to this being their home, the Squamish rely on their territorial and reserve lands, and the waters and resources adjacent to them, to support their people, culture and way of life, and to practice their Aboriginal rights, including harvesting, cultural, social, ceremonial and governance rights. These areas are culturally and ecologically significant, are vital to Squamish’s livelihood and economy, and are critical to the survival of Squamish people and culture.15

30. The Project area contains a concentration of Squamish cultural and spiritual values including multiple burial sites, ancestral villages, habitation sites, traditional transportation corridors and important fish, game and plant harvesting areas. Due to the density and significance of the cultural and spiritual values in the Project area, the lands and waters in this area are very sensitive to further industrial development. The loss of access to, or availability of, the land,

12 C319-11-1-NEB Hearing Transcript – Squamish Nation Corrections (A4F2C8), paras. 5439-5440, 5505 13 Squamish Nation Direct Evidence (A6L6J5), para. 12 14 Squamish Nation Direct Evidence (A6L6J5), para. 13 15 Squamish Nation Direct Evidence (A6L6J5), para. 14

7 waters and resources within this part of Squamish Territory would be devastating to Squamish identity and culture.16

31. Squamish would bear the burden of a significant portion of the potential risks and impacts of the Project. The Project would result in a substantial increase in shipping of diluted bitumen in Squamish Territory, increasing the risks of spills or other accidents that would be catastrophic for Squamish people, lands, water, culture and economy.17

32. Squamish takes their stewardship role within their Territory seriously. Squamish has actively engaged in rehabilitating the marine environment in the Project area in an attempt to counteract the effects of industrialization. The Project threatens to undermine those efforts by substantially increasing the storage and shipment of diluted bitumen in those areas for an indefinite duration.18

33. As detailed below, the Project-related marine shipping, including accidents and malfunctions associated with Project-related marine shipping, has the potential to adversely impact the Nation’s people, lands, waters, and a wide range of interests, including:

(a) the Nation’s traditional and contemporary use and enjoyment of their reserves and territorial lands and waters in and around Burrard Inlet and the Salish Sea;

(b) the Nation’s stewardship of the Salish Sea and the existence of marine mammals of cultural importance in the Territory, including orcas, porpoises, seals and seal lions;

(c) the Nation’s access to salmon and other marine/aquatic resources and terrestrial resources relied upon by their members;

(d) the Nation’s ability to harvest these resources from significant and sacred sites; and

16 Squamish Nation Direct Evidence (A6L6J5), para. 15 17 Squamish Nation Direct Evidence (A6L6J5), para. 16 18 Squamish Nation Direct Evidence (A6L6J5), para. 17

8 (e) the Nation’s use of Burrard Inlet and the Salish Sea as a relatively safe waterway for their paddlers.19

D. SQUAMISH SEASONAL ROUND

34. Squamish has extensive traditional use and occupancy sites in Indian Arm, Burrard Inlet and the Salish Sea. These sites illustrate the extensive and intensive nature of Squamish use and occupation of these areas, and the dependency of Squamish culture and identity on the marine and aquatic environment.20

35. The geographic location of Squamish village sites and harvesting areas reflects the Squamish seasonal round, which was used to efficiently access the resources in Squamish Territory throughout the year. While most villages remained at least partly occupied throughout the year, and there are numerous permanent village sites, many people moved between winter villages on the Squamish and Cheakamus Rivers to summer village sites on Burrard Inlet, Howe Sound, and the Fraser River to continue harvesting local resources through the spring, summer, and fall.21

36. Squamish members continue to practice a seasonal round today travelling throughout their Territory to access a wide variety of resources, and engage in cultural and spiritual activities. Squamish people continue to use their Territory for fishing, hunting, and gathering traditional foods for sustenance, social and ceremonial purposes. However, it is becoming more difficult for Squamish people to access resources as the quality, purity and abundance of resources has been adversely impacted by industrial development.22

37. Maintaining access to traditional travel routes throughout the marine environment is critical to maintaining the Squamish seasonal round.23

19 Squamish Nation Direct Evidence (A6L6J5), para. 18 20 Squamish Nation Direct Evidence (A6L6J5), para. 19 21 Squamish Nation Direct Evidence (A6L6J5), para. 20 22 Squamish Nation Direct Evidence (A6L6J5), para. 21 23 Squamish Nation Direct Evidence (A6L6J5), para. 22

9 E. SQUAMISH NATION ABORIGINAL RIGHTS AND INTERESTS

38. Squamish’s distinct system of governance, traditional and cultural practices, spirituality, and harvesting activities are inextricably linked to the lands, waters and resources of their Territory. Squamish continue to use and rely on the resources available in their Territory, in a respectful and sustainable manner.24

39. Stewardship and respect for these resources is essential for the survival of Squamish and their distinctive culture. Squamish has a wide set of title, rights and interests that are potentially impacted by the Project. Squamish take their role and responsibility as stewards of their Territory seriously, and wish to protect their lands and waters for future generations.25

1. Squamish self-government rights

40. An important aspect of Squamish rights and title to their Territory is their ability to govern and act as stewards of the lands, waters and resources within their Territory. Squamish have governed, protected and defended their Territory since time immemorial.26

41. Squamish people historically governed themselves by appointing leadership roles called a siy̓ ám̓ . A siy̓ ám is sometimes translated as “chief”, but has a wider cultural meaning as well. A siy̓ ám̓ was associated with discrete areas within the larger Territory. A siy̓ ám̓ would have a siy̓ ámin – an area in the care and responsibility of the siy̓ ám̓ . A complex set of practices, customs, and laws applied within the siy̓ ámin – these rules and practices are inseparable from the lands and waters, and inform Squamish governance of their Territory today.27

42. Since 1981, Squamish has governed itself by way of a custom election system. Currently, sixteen Councilors are elected by eligible members 18 years and older and serve four year terms.

24 Squamish Nation Direct Evidence (A6L6J5), para. 23 25 Squamish Nation Direct Evidence (A6L6J5), para. 24 26 Squamish Nation Direct Evidence (A6L6J5), para. 25 27 Squamish Nation Direct Evidence (A6L6J5), para. 26

10 Each of these 16 Councillor positions is directly related to the 16 hereditary Chiefs and Squamish people that amalgamated on July 23, 1923 to form Squamish’s traditional government.28

43. Squamish continues to exercise governance over their Territory in a variety of ways, including by: managing development in their Territory to ensure an abundance of safe traditional resources and foods; undertaking rehabilitation of areas within their Territory that have been contaminated by development; partnering with neighbouring First Nations and the Coast Salish community to jointly share and manage resources; and transmitting the principles of stewardship and resource conservation to the next generation.29

44. Squamish has been an active member in the Coast Salish Gathering. This gathering is a trans-boundary collective of approximately 60 First Nations/tribes engaged in revitalizing the health and long-term sustainability of the Salish Sea by using marine use planning based on scientific and traditional ecological knowledge. The protection of the Salish Sea extends to the protection of the marine fish and marine mammals within the Salish Sea.30

45. Squamish is taking an active role in efforts to reinvigorate and enhance the sustainability of the aquatic ecosystem, including in Burrard Inlet, to combat the effects of industrialization, partnering with various jurisdictions and organizations to implement initiatives that protect their Territory. Recent examples include:

(a) Fisheries enhancement, through installation of a rearings pond, on McDonald Creek (Ch’tlaam), with the West Vancouver Streamkeepers;

(b) Foreshore and estuary restoration on Mackay Creek (Tl’álhema7elks), with the City and District of North Vancouver and Seaspan;

(c) Estuary restoration and installation of a rearing pond on Mosquito Creek (Eslhá7an);

(d) Stream rehabilitation in the New Brighton Park (X̱ í7namut) area on the south shore of Burrard Inlet, just west of the Westridge Marine Terminal; and

28 Squamish Nation Direct Evidence (A6L6J5), para. 27 29 Squamish Nation Direct Evidence (A6L6J5), para. 28 30 Squamish Nation Direct Evidence (A6L6J5), para. 29

11 (e) Removal of fish barriers on Ch’ích’elx̱ wi7ḵw (Seymour Creek), with the Seymour Creek Salmonid Society.31

46. Squamish has established a fisheries department, and enacted a fishing by-law to ensure sustainable fishery resources in their Territory for generations to come. The by-law regulates fishing through Fisheries Guardians who oversee the use of the fishing resources in particular areas within the Territory and educate Squamish youth with regard to fishing practices. Squamish has also engaged in hatchery projects to aid in the rehabilitation of fish stocks. These efforts are a small part of the active role Squamish plays as a steward of their waters and fisheries resources.32

47. Squamish is particularly concerned about species that have cultural significance to the Nation disappearing from their waters. It used to be that there were an abundance of sea lions, seals, dolphins, porpoise and orcas in southern Howe Sound and Burrard Inlet. However, the number of these marine mammals has diminished. Recently, the rehabilitation work of the Nation and others has seen the return of orcas to Howe Sound and Burrard Inlet, but it is critical to Squamish culture that this work not be undermined.33

2. Squamish harvesting rights

48. Squamish are uniquely dependent on the aquatic and marine environment within their Territory that would be impacted by the Project to exercise their aboriginal rights and maintain their way of life. Squamish people enjoy a variety of benefits from the aquatic and marine environment in their Territory, including economic benefits, and manage their Territory to ensure the continued availability of these benefits.34

49. Squamish members continue to use their Territory to fish, hunt and gather resources for sustenance, and to fulfill their social and ceremonial needs. This harvesting is an essential part of Squamish identity and heritage, and is fundamentally dependent on strong governance and stewardship of their Territory, including the aquatic and marine environment. Conservation is a

31 Squamish Nation Direct Evidence (A6L6J5), para. 30 32 Squamish Nation Direct Evidence (A6L6J5), para. 31 33 Squamish Nation Direct Evidence (A6L6J5), para. 32 34 Squamish Nation Direct Evidence (A6L6J5), para. 33

12 foundation of Squamish culture that has ensured access to resources in their Territory up until today. It is Squamish’s intention to ensure that this continues to be the case.35

50. Squamish continue to rely on their Territory to exercise their aboriginal harvesting rights to fish, hunt and gather marine, aquatic and terrestrial resources. For example, they exercise their rights in and around their Territory to harvest:

(a) fish including, salmon, herring, herring roe, smelt, trout, cod, flounder, and rockfish;

(b) shellfish including, sea urchins, crab, clams and prawns;

(c) birds including, ducks, pheasant, grouse, geese, and seagull eggs;

(d) mammals including, deer, elk, seals, sea lions, black bears and mountain goat; and

(e) cultural and medicinal plants, seaweed, clay, berries, broadleaf maple, cedar and douglas fir and other timber for canoes and longhouses.36

51. The rivers and streams entering into Burrard Inlet have served as important harvesting, transport, and cultural locations for Squamish. These waterways have provided a number of resources, including:

(a) trout and pink and chum salmon in Lynn Creek;

(b) dungeness crab, flounder, cod, trout and salmon in and at the mouth of Mosquito Creek;

(c) all species of salmon (except sockeye) in the Capilano River;

(d) steelhead, coho, pink, chum and chinook salmon in Seymour Creek; and

(e) tidal traps at Stítsma (Maplewood flats) and at Á7enmitsut in False Creek.37

35 Squamish Nation Direct Evidence (A6L6J5), para. 34 36 Squamish Nation Direct Evidence (A6L6J5), para. 35 37 Squamish Nation Direct Evidence (A6L6J5), para. 36

13 52. The availability, purity and abundance of many of these resources have been impacted by the development in and around Burrard Inlet. Squamish is taking an active role in restoration efforts as described above.38

53. The marine and aquatic resources in Squamish Territory also play an important economic role for Squamish. Squamish traditionally harvested marine and aquatic resources for sustenance and ceremonial purposes, but also for trading purposes.39

3. Squamish’s right to fish is essential to their culture

54. Like other Coast Salish people, the Squamish harvest and use various fisheries resources in and around the Territory. The harvest of fisheries resources was and remains fundamentally important to the Squamish culture and economy.40

55. Dried and preserved fisheries resources, and particularly salmon, were and are an extremely important food source for the Squamish throughout the year and important to ceremonial and social aspects of their culture, including for distribution and consumption at feasts, weddings, funerals/memorials and other events.41

56. Salmon are a high-protein food and can be harvested and preserved in large quantities. Salmon, and particularly sockeye salmon, are an essential and valued resource for the Squamish. The Squamish traditionally harvested salmon throughout their Territory, including among other places, the Lower Fraser River between the mouth of the Fraser and at least as far up the river as what is now Hope, B.C. for sockeye salmon.42

57. Squamish continue to harvest salmon throughout their Territory, but salmon stocks have been on the decline, and Squamish worry about maintaining continued access to this valuable

38 Squamish Nation Direct Evidence (A6L6J5), para. 36 39 Squamish Nation Direct Evidence (A6L6J5), para. 37 40 Squamish Nation Direct Evidence (A6L6J5), para. 38 41 Squamish Nation Direct Evidence (A6L6J5), para. 39 42 Squamish Nation Direct Evidence (A6L6J5), para. 40

14 resource. The Fraser River is the only source of sockeye salmon in and around their Territory. No other river in this area has a run of sockeye salmon.43

58. Since the very early contact period, the Squamish regularly fished substantial quantities of Sockeye on the Fraser River as part of their yearly cycle of resource harvests. A report prepared by Richard Inglis for the Nation entitled “Opinion Report Squamish Fishing on the Fraser River” describes the Nation’s fishing history in respect of the Fraser River. Mr. Inglis states:

The Squamish annual seasonal pattern of arriving on the Fraser River in April and returning to Burrard Inlet in late September/early October was well established in the late 1820s, leading me to conclude that this was an indigenous long term pattern in existence since before contact with Europeans. Further, it is my opinion that the time of year that the Squamish were on the Fraser River at the upriver salmon fishery indicates that Sockeye was the major species of salmon harvested.44

59. The fact that the Squamish regularly fished for Sockeye on the Fraser as an integral part of their distinctive culture is all that is required to prove their Aboriginal right.45 Squamish submit that, based on the material provided to the Board a strong prima facie claim to harvest Fraser Sockeye is established.

60. Squamish fears that an accident or malfunction associated with the Project would be catastrophic to the fisheries resources, including Sockeye, upon which the Nation’s members depend.46

4. Squamish’s right to navigate their Territory

61. In addition to supporting harvesting activities, Squamish communities have traditionally relied, and continue to rely, on the water ways in and around Burrard Inlet, Southern Howe Sound, and the lower Fraser River as important transportation corridors. This movement is seasonal and important for maintaining familial ties, participating in community activities,

43 Squamish Nation Direct Evidence (A6L6J5), para. 41, Annex A 44 Squamish Nation Direct Evidence (A6L6J5), Annex A, p. 6 45 As a matter of law, it does not matter if this activity took place outside the territory over which the Squamish assert Aboriginal title (R. v. Adams, [1996] 3 S.C.R. 101, para. 26). 46 Squamish Nation Direct Evidence (A6L6J5), para. 42

15 accessing sacred sites and transmitting information about cultural practices from one generation to the next.47

62. Lheḵw’lhứkw’aytn (Burnaby Mountain) – the location of the Westridge Marine Terminal – is along a water route used by Squamish people to travel between Capilano and Indian Arm.48

63. Transportation routes were and are specific with respect to location, directionality, and timing, reflecting the essential aquatic orientation of Squamish people. Examples include:

(a) the use of specific marine waypoints, visible only from the water, as navigation and safety aids;

(b) ancestral villages in Howe Sound, like Ch’kw’elhp and Ḵ’iḵ’elx̱ n, along with a burial ground on Keats Island are stopover sites at which location-specific stories are told; and

(c) water-based vantages are important sites from which to teach cultural norms, as well as water safety and respect, to youth.49

64. Travel to other Coast Salish communities was and remains significant to the maintenance of family ties. Canoe races cement intratribal and intertribal connections. Paddlers of canoes continue to train in and around the Territory. Canoe races continue to take place in Burrard Inlet, between Roche Point and Belcarra, Ambleside and Coal Harbour, as well there are annual tribal canoe journeys throughout the Salish Sea and Pacific west coast.50

5. Squamish cultural and spiritual practices

65. Burrard Inlet, and the surrounding areas, have been the home of the Squamish since time immemorial. Squamish’s cultural and spiritual practices are inseparable from the lands and waters on and in which they are exercised.51

47 Squamish Nation Direct Evidence (A6L6J5), para. 43 48 Squamish Nation Direct Evidence (A6L6J5), para. 44 49 Squamish Nation Direct Evidence (A6L6J5), para. 45 50 Squamish Nation Direct Evidence (A6L6J5), para. 46 51 Squamish Nation Direct Evidence (A6L6J5), para. 47

16 66. Numerous Squamish archaeological, cultural and/or otherwise sacred sites exist in and around Burrard Inlet, including shell middens, culturally modified trees (bark stripping, indigenous logging, canoe manufacture), cemeteries, burials, fish traps or fish weirs, canoe runs, and rock art.52

67. The rivers and creeks within Squamish Territory have been, and continue to be, important sites from a cultural and spiritual perspective. Maintaining access to and the purity and privacy of these sites is critically important to Squamish people – especially in view of existing urban and industrial disturbance. Some creeks entering Burrard Inlet, are important to Squamish for spiritual training and locations for spiritual bathing.53

68. The bathing practices are more than a ritualistic cleansing – they also serve as a means to re-awaken the person to their past, in the same way that practices in the longhouse itself wake up a person to their past. The bathing practices are associated with a rite of passage and instill a way of life that respects the connections to the natural world.54

69. The longhouse is the hub of Squamish culture, spirituality, cultural education, beliefs, and practices. There are currently two longhouses located on Squamish Territory – one at Xwmel̓ch’stn (Capilano Reserve) and one at Ch’ich’elx̱ wi7kw (Seymour Reserve), but there was historically a number throughout their Territory.55

70. The resources needed to support the longhouse tradition are drawn from the waters and lands in and around Burrard Inlet: the masks are made from local cedar; feathers harvested from local waterfowl are used to welcome the new xaw̓ sálḵwelh dancers (the new longhouse dancer) upon their first entry into the longhouse; and the food used for ceremonial and sustenance purposes is harvested from the broader Territory. Continued access to these resources is integral

52 Squamish Nation Direct Evidence (A6L6J5), para. 48 53 Squamish Nation Direct Evidence (A6L6J5), para. 49 54 Squamish Nation Direct Evidence (A6L6J5), para. 50 55 Squamish Nation Direct Evidence (A6L6J5), para. 51

17 to the longhouse tradition enduring. The longhouse tradition is the thread connecting thousands of years of Squamish practice and culture.56

71. The connection between Territory and culture is an essential component of Squamish identity. Harvesting in the same places as Squamish ancestors and relatives harvested allows for the transmission of site-specific Squamish teachings and history. Being on and learning from Squamish Territory expresses and reinvigorates Squamish identity.57

72. The waters in and around Burrard Inlet are used as points to realize Squamish’s spiritual connection to their Territory. Sloughs and marshes are portals that connect to the aqueous spiritual realms. These portals are found in several locations throughout the area that would be impacted by the Project. These stories are central to Squamish beliefs and mythology, and cement the importance of the water in Squamish culture. For example:

(a) Xwech’táal, a prominent figure in Squamish oral history, was transported through one of these underwater portals after being abducted by the seal people. Xwech’táal brought back the connection of these realms to the living world and the sacredness of that connection when he returned four years later. This location is near the Burnaby Mountain tunnel (along with the Burnaby Terminal and Westridge Marine Terminal), located north of the site near Temtemixwtn – Belcarra Park.

(b) One of the Wild People, known as the smàýlilh, trained Squamish warriors in the Capilano River. The Squamish were instructed to carry heavy stones underwater through the pools on the river, and in so doing, were transcended into the spirit world.58

73. Many of the people in the Squamish community have learned of the different spiritual sites in their Territory from their parents and their grandparents, as knowledge of these sites is

56 Squamish Nation Direct Evidence (A6L6J5), para. 52 57 Squamish Nation Direct Evidence (A6L6J5), para. 53 58 Squamish Nation Direct Evidence (A6L6J5), para. 54

18 passed down from one generation to the next by visiting the sites, and accessing the sites from the marine environment.59

F. SQUAMISH MARINE DEPENDENT ECONOMIC INTERESTS

74. The marine and aquatic resources in Squamish Territory also play an important economic role for Squamish. Squamish traditionally harvested marine and aquatic resources for sustenance, ceremonial and commercial purposes, including trade.60

75. Today, Squamish has many businesses that are dependent on a healthy marine and aquatic environment. Squamish owns Mosquito Creek Marina on IR No. 1 and Lynnwood Marina on IR No. 2. By the Lynnwood Marina, there are a number of leases of the foreshore to third party businesses and a waterfront restaurant owned by the Nation (that is now closed). Squamish further has economic development aspirations for a stretch of foreshore on IR No.5 – being one of the last large undeveloped waterfront properties in the Vancouver area. The businesses of Squamish are critically important to the economic well-being of their Nation.61

G. SQUAMISH ORAL EVIDENCE ON THE IMPACTS OF PROJECT-RELATED MARINE SHIPPING

76. Two of Squamish’s elected councillors Xàlek/sekyú Siýam (Chief Ian Campbell) and Syetáxtn (Councillor Chris Lewis), and Squamish elder, historian and language expert Iyal (Elder Vanessa Campbell) presented oral evidence to the Board focusing on the significance of the marine environment, including what is now known as Burrard Inlet, the mouth of the Fraser River, Howe Sound, and the Salish Sea, and species of importance, like the orca, to Squamish people.62

77. Squamish’s culture continues to guide and inform individual Squamish members and the Nation as a collective today. Squamish members today continue to use their Territory, including

59 Squamish Nation Direct Evidence (A6L6J5), para. 55 60 Squamish Nation Direct Evidence (A6L6J5), para. 56 61 Squamish Nation Direct Evidence (A6L6J5), para. 57 62 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3076-3077

19 the marine environment, to nourish their community, passing on traditional knowledge of practices, history and spirituality to future generations.63

78. Squamish’s spiritual and cultural foundations are the basis for the Nation’s role as steward of Squamish’s lands, waters and resources. This role is built into Squamish’s ceremonial and governance structures.64 Culture and spirituality are place based and result from members practicing their way of life, as they have done for generations, on the land and waters that make up Squamish’s Territory. These practices continue today and remain an essential part of what it means to be Squamish. As Xàlek/sekyú Siýam said: “what we’re sharing isn’t in a museum, … it’s a living culture … we’re not capsuled in time[,] that tradition is 200 years ago, tradition is today.”65 The transmission of language, culture, and spirituality requires Squamish members to be out in the Territory actively engaging with their environment as they have done since time immemorial.66

79. The relationship between Squamish people and their environment is central to Squamish identity and spirituality. The presence of marine wildlife, like the orcas that used to calve at the elbow of Indian Arm, where the Westridge Marine Terminal is now located,67 and still hunt for chinook at the mouth of Burrard Inlet across from Squamish’s Capilano No. 5 reserve (Xwmech’stn),68 continue to play an important role in Squamish cultural and spiritual transmission. Syetáxtn described his uncle explaining to him how the resident orcas teach their young to feed in Burrard Inlet while they both watched:

3162. I was at the mouth of Xwmelch’stn River which is Capilano River and we have a point there and we were fishing. And I witnessed this with my uncle. And I didn’t know what was happening […]

3163. And he told me, "Nephew, those are residents. Those are the ones that eat the chinook." Because you can see the fish. And then he told me the story of when he witnessed the same thing with the transients. And then he would tell me the story that my

63 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3085, 3093-3098 64 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), para. 3098 65 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), para. 3201 66 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3255-57; para. 3163; para. 3214 67 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), para. 3111 68 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3160-3164

20 grandfather told him and also myself about how we would use the high ground and (Native word) to harvest various different resources at the narrows.

3164. So that connection to that way of life is still alive and well and has been passed down. I'm not that old. I don't have any white hair. And I've been fortunate to hear those stories and I will be passing those on to my -- and I hope my kids see the (Native word) hunting and teaching their little ones how to hunt the seals or hunt the fish in the narrows at Xwmelch’stn.69

It is these stories, practices, and knowledge that have preserved the Squamish society despite colonialization.

80. In order to preserve the Territory and the culture that flows from it, Squamish have taken a direct role in land use planning, much as Squamish ancestors have done for millennia.70 Squamish asserts its jurisdiction to support a true shared-decision making model.71 As stated by Iyal in her evidence to the Board:

There’s lots of times when things have been taken and we’ve been told, ‘Oh, this is for the good of everyone.’ But it’s never been good for us. So it’s time we have to say we know our land, we know the creatures that we share our life with. You know these creatures too.72

H. SQUAMISH EXPERT EVIDENCE ON THE IMPACTS OF PROJECT-RELATED MARINE SHIPPING

81. The Nation jointly commissioned expert reports with other intervenors that show that expanding the marine terminal and increasing the tanker traffic through Burrard Inlet and the Salish Sea (in proximity to the Lower Mainland) to at least 34 Aframax tankers per month (this number substantially increases if Panamax tankers are used instead of Aframax)73 poses a significant risk to the marine environment, particularly in the event of an accident or malfunction, and that there remains significant unknowns and gaps with respect to the capability and capacity to clean up a spill of diluted bitumen from the Project.

69 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3162-3164 70 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3105-3106, 3194, 3277-3283 71 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3285 72 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), para. 3127; see also para. 3217 73 Trans Mountain Response to City of Burnaby Reconsideration IR No. 1.1(d) (A6Q5Z6)

21 82. The experts reviewed the additional evidence put forward in the Reconsideration along with relevant material from the original OH-001-2014 proceeding.

1. Spilled diluted bitumen will submerge in Burrard Inlet within one to two days and cause irreversible environmental effects

83. A report by Dr. Jeffrey W. Short entitled “Further Report on the Fate and Effect of Oil Spills from the Trans Mountain Expansion Project in Burrard Inlet and the Fraser River Estuary” (NEB Filing No. A4L6A8) (filed jointly by Squamish, Tsleil-Waututh Nation, Stz'uminus First Nation, Snuneymuxw First Nation, City of Vancouver, and the Living Oceans Society) updates his report in the original proceeding and responds to new evidence filed by the federal authorities and Trans Mountain on the fate and behaviour of diluted bitumen in the marine/aquatic environment.

84. Dr. Short concludes that diluted bitumen is likely to submerge more quickly and in larger quantities than the Board concluded in its original Report and this would lead to additional challenges in spill response and clean-up. Dr. Short made the following findings in his report:

(a) diluted bitumen products are likely much more prone to submerge in receiving waters within the Fraser River plume in the Georgia Strait than is currently recognized by the NEB;

(b) spilled diluted bitumen could submerge within as little as one or two days within the spring freshet of the Fraser River, including within Burrard Inlet;

(c) contrary to the NEB’s conclusions, diluted bitumen could submerge in large quantities over widespread areas if a large oil spill occurred during the conditions leading to freshened surface waters in Burrard Inlet and/or the Fraser River Estuary; and

(d) if the residual bitumen starts to submerge in less than a day or two, it may disappear from the surface of water bodies before oil spill responders can retrieve it. Once submerged, it becomes almost impossible to track.74

74 Short Reconsideration Report (A6L6F5), paras. 8, 46 (emphasis added)

22 85. Dr. Short highlights that the reliance by the original NEB panel on studies that do not mimic the conditions of an actual spill from the Project led the panel to underrepresent the risk of submergence. Dr. Short notes that:

34. In particular, the studies the NEB relied on in support of its conclusions all substantially overestimate the time required for dilbit to submerge in receiving waters following an accidental discharge. This overestimation results primarily from the unrealistic oil film thicknesses used in those experiments, which ranged from 1.15 mm to ~20 mm (compared with a 0.4 mm thickness of dilbit that would be immediately encountered following discharge to receiving waters).

35. Other scientific studies, some of which appear to have been discounted by the NEB despite having been cited in the NEB hearing record for the Project, clearly show that oil film thickness and wind speed are important factors affecting evaporation rates of volatile components from spilled petroleum products, including typical crude oils.

…

48. More fundamentally, these possibilities do not support the NEB’s conclusion “...that sufficient evidence has been placed on the record regarding the fate and behavior of an oil spill to support assessment of potential spill-related effects and spill response planning.” Despite the experimental evidence presented, considerable uncertainty remains regarding the time required for dilbit to submerge in receiving waters. This uncertainty could be largely resolved by experiments designed to mimic likely environmental conditions during an actual spill.

49. The limited number of laboratory or mesocosm experiments conducted to date fail to address the range of dilbit products and environmental conditions that may be encountered during and after a Project-related dilbit spill. Such experiments furnish a reliable basis for predicting uncontrolled outcomes in the natural environment only when all the relevant factors are identified, the effects of each factor is quantitatively measured over ranges of values that are likely to occur during and after a spill, and interactions among factors are also identified and quantitatively understood. These requirements are currently far from being satisfied by the laboratory or mesocosm experiments conducted to date on the susceptibility of dilbit to submergence in receiving waters.

…

50 Oil spill response authorities, including planners, and the general public need to know what the minimum credible time is that dilbit discharged into receiving waters of Burrard Inlet and the Fraser River estuary could begin to submerge en masse. This information is essential for planning response strategies and for evaluating the environmental risks associated with this Project. Absent experiments designed to accurately estimate this minimum time, it cannot be fairly assumed that response measures will have adequate time for deployment before dilbit begins to submerge.75

86. Dr. Short’s conclusions have significant implications for understanding the extent to which diluted bitumen can or cannot be cleaned-up in Burrard Inlet and the Fraser River Estuary.

75 Short Reconsideration Report (A6L6F5), paras. 34-35, 48-50

23 Dr. Short recommends that additional studies be undertaken to “provide critical information for further assessing the significance of the adverse effects of Project-related oil spills involving dilbit and further understanding how it may not be possible to clean up such spills in Burrard Inlet and the Fraser River Estuary.”76 Without such information, the Board cannot be confident that emergency responders will have adequate time for deployment before diluted bitumen begins to submerge or sink.

2. Trans Mountain’s ecological risk assessment does not provide an acceptable basis for evaluating the ecological risks of an oil spill from Project-related tankers

87. Dr. Short’s report further concludes that Trans Mountain’s ecological risk assessment does not provide an acceptable basis for evaluating the ecological risks of an oil spill from Project-related tankers and that none of the evidence filed by Trans Mountain in this Reconsideration hearing addresses those fundamental deficiencies with the ecological risk assessment for the Project.77

88. Dr. Short addresses errors in the NEB Report regarding the serious ecological damage that could result from a credible worse-case oil spill from a tanker. Dr. Short highlights the problems with relying on Trans Mountain’s ecological risk assessment that evaluated risks of spills at representative locations only.78 Dr. Short concludes that the original NEB panel erred in concluding that Trans Mountain’s ecological risk assessment provided an acceptable basis for evaluating the ecological risks of an oil spill from Project-related tankers.79

89. The NEB panel did not consider the serious ecological damage that could result from large oil spills that originate from locations other than the Swartz Bay-Tsawwassen ferry route intersection with the marine shipping route that was selected by Trans Mountain for its oil spill risk assessment modeling. As a result, the NEB “underestimated the adverse environmental and socio-economic effects of such an oil spill by an order of magnitude or more.”80

76 Short Reconsideration Report (A6L6F5), para. 50 (emphasis in original) 77 Short Reconsideration Report (A6L6F5), paras. 74-77 78 Short Reconsideration Report (A6L6F5), paras. 63-73 79 Short Reconsideration Report (A6L6F5), paras. 6, 75 80 Short Reconsideration Report (A6L6F5), paras. 6, 75

24 90. Further errors highlighted by Dr. Short include:

(a) The NEB concluded in its Report that the ecological consequences of a large oil spill can be discounted (and essentially ignored) because such a large oil spill is, in its view, unlikely. In effect, the NEB has ignored and failed to consider all low-probability, high-consequence events if they fail to meet the NEB’s unstated threshold for credible likelihood.

(b) The NEB concluded that only shorelines and species shown to be exposed to oil from the specific spill locations that Trans Mountain included for their oil spill trajectory modeling are susceptible to oiling.

(c) Trans Mountain did not model oil spill trajectories for spills that are smaller than the mean spill volume scenario of 8,250 m3 along the marine shipping route. Consequently the NEB did not consider effects from large oil spills that are smaller than the mean spill volume they considered, and that may occur at other locations along the marine shipping route.

(d) Trans Mountain failed to consider spills smaller in size than their “credible mean” size, and spills that may occur at alternate locations with a greater likelihood than for Trans Mountain’s “credible mean” size scenario. By eliminating adverse outcomes that are not associated with Trans Mountain’s extremely limited selection of “credible” oil spill origin locations, and especially with the meaning of “credible” left undefined, Trans Mountain’s ecological risk assessment is arbitrary and is substantially incomplete.81

91. Dr. Short finds that none of the evidence in the Reconsideration addressed the errors regarding the adequacy of the ecological risk assessment for the Project. The consequence of this omission is that Trans Mountain (and the NEB) have significantly underestimated the risks of small, medium and large oil spills from marine tankers associated with the Project. Dr. Short concludes that the assessment should not be relied upon as a basis for evaluating the ecological risks of an oil spill from Project-related oil tankers.82

81 Short Reconsideration Report (A6L6F5), paras. 55-58 82 Short Reconsideration Report (A6L6F5), paras. 75, 77

25 3. Environmental effects of a diluted bitumen spill in the Fraser River estuary would be catastrophic

92. According to Dr. Short, the original NEB panel did not consider adverse ecological effects that would ensue from oil spills that could originate from locations along the marine shipping route other than those included in Trans Mountain’s modeling efforts. The NEB failed to take into account the following effects that must be accounted for in the Reconsideration report:

(a) Ecological effects from credible spills that are smaller than Trans Mountain’s worst-case scenarios but that are more likely to occur. Even 100 m3 to 1,000 m3 spills can cause extensive and prolonged ecological damages.

(b) Oil originating from locations other than those included in Trans Mountain’s modeling could be transported to sensitive shorelines and species such as English Bay and Burrard Inlet.

(c) Possibilities for long-term ecosystem-level effects, which have the potential to alter marine ecosystem functioning on decadal time scales or longer.83

93. With respect to the environmental effects of oil spills on the environment in Burrard Inlet and the Fraser River Estuary, Dr. Short found that:

(a) Ecological damage from a credible, worst-case spill could result in mass mortalities of sea- and shorebirds in the hundreds of thousands, which could seriously de-stabilize the marine ecosystem of the Strait of Georgia, possibly irreversibly.

(b) A reasonable worst-case oil spill could result in mortalities of 100,000–500,000 birds, enough to disrupt ecosystem functioning for years or even permanently, and to affect other distant habitats occupied seasonally by migratory species. A major mortality event for seabirds and shorebirds might trigger a trophic cascade, and if it did it could be the most serious long-term consequence of such an oil spill. A large reduction of seabirds caused by exposure to spilled oil could cause a disproportionately large increase of their forage fish prey. In turn, this could depress the abundance of the planktonic organisms consumed by forage fish, including the larval stages of

83 Short Reconsideration Report (A6L6F5), paras. 94-97

26 a host of other marine organisms such as shellfish and finfish that are important economically or for subsistence harvests.

(c) High mortalities of marine mammals could also result for species such as killer whales, porpoises, dolphins and seals that, like seabirds, routinely inhabit the sea surface, making them especially vulnerable to contact with floating diluted bitumen. In the case of the southern resident population of killer whales, any additional mortalities resulting from oil exposure could materially contribute to the extinction risk for this stock, which would permanently alter ecosystem functioning in the Salish Sea.

(d) Also, once oiled, many of the shorelines of Burrard Inlet and the rest of the Fraser River delta would retain oil residues for months to several decades, presenting long-term reservoirs of contamination for organisms associated with these shorelines, and hence substantial adverse consequences for subsistence uses, tourism and commercial fishing.

(e) Widespread contamination of shorelines following a large oil spill all but guarantees that people will encounter lingering pockets of oil on high-retention shorelines for many years to decades following a spill. Once stranded on shorelines, diluted bitumen released from an accidental spill may persist for days to several decades or even a century under worst-case conditions.

(f) Small to medium sized oil spills on the order of 100 m3 to 1,000 m3 from the Project can cause substantial mortalities to seabirds, and estimated effects for small to medium spills in Canada and in Alaska have the potential to contaminate tens of kilometers of shorelines on time scales of decades.84

4. Oil Spills from the Project-related marine shipping will happen

94. A report by Dr. Thomas Gunton and Dr. Chris Joseph entitled “Trans Mountain Expansion Project Reconsideration Hearing: Assessment of Oil Spill Risks” (NEB Filing No. A6L6F4) (filed jointly by Squamish, Tsleil-Waututh Nation, Stz’uminus First Nation,

84 Short Reconsideration Report (A6L6F5), paras. 97-98, Appendix 1, para. 7(c) and (d)

27 Snuneymuxw First Nation, and the City of Vancouver) provides new and updated evidence on the marine oil spill risk from the Project (Dr. Gunton and Dr. Sean Broadbent previously filed a report on oil spill risk with the Board entitled “An Assessment of Spill Risk for the Trans Mountain Expansion Project”). The report considers advances in the scientific and technical literature since the original OH-001-2014 proceeding and reviews the evidence of Trans Mountain and the federal authorities.

95. The report provides a review of the analysis that was completed by the NEB in the original Report on oil spill impacts and concludes that it has the following deficiencies:

(a) no probability estimates were explicitly used to justify the conclusions that large spills would be unlikely;

(b) no definition of large and small spills was provided;

(c) no conclusion was reached on whether small spills could cause significant adverse effects and whether small spills would be likely; and

(d) no estimate of the costs of a credible worst-case marine spill was provided and consequently no assessment of the adequacy of financial capacity to cover the costs of a credible worst-case marine spills was undertaken.85

96. The report further reviews Trans Mountain’s methodology for assessing marine spill risk and concludes that it has the following failures:

(a) failure to adjust for the underreporting of incidents in the database used to estimate spill likelihood, which leads to an underestimate of incident risk in the model;

(b) failure to provide adequate evidence to justify downward adjustments in spill probabilities;

(c) double-counting of mitigation measures, such as tug escorts and other spill mitigation measures; and

85 Gunton and Joseph Reconsideration Report (A6L6F4), para. 2

28 (d) failure to conduct sensitivity analysis and provide confidence intervals to assess the uncertainty of the results.86

97. The principal conclusions of the report establish that spills are inevitable and likely. Dr. Gunton and Dr. Joseph find as follows:

(a) Trans Mountain’s tanker spill risk assessment underestimates the probability of spills and it would be imprudent and contrary to the precautionary principle to rely on Tran Mountain’s lower bound tanker spill probability estimate of 16%.

(b) An important consideration in assessing spill risk is determining the spill size categories to use for estimating the likelihood of spills. For example, based on the US BOEM OSRA methodology, the probability of a Project marine oil spill ≥1,000 bbl based on the US port spill rates is 75%, while the probability of a larger spill ≥10,000 bbl is 21%. Therefore, the spill size category that is used will affect the estimation of likelihood of the event. It is our conclusion that using the US BOEM OSRA probability of a spill size of ≥1,000 bbl is the relevant spill size definition to use in assessing likelihood because evidence submitted to the NEB and other evidence we have reviewed in our report concludes that small oil spills can cause significant adverse effects.

(c) The probability of a marine tanker spill for the Project over a 50-year operating period based on the NEB definition of the marine project area ranges between 43% and 75%, with the best estimate based on the precautionary principle being at the upper end of this range.

(d) If consideration is given to the entire area impacted by Project tanker traffic, a reasonable estimate of the probability of a tanker spill ranges up to 95%.

(e) The probability of a marine terminal spill is 77% for spills less than 63 bbl and 19% for spills between 63 and 629 bbl over a 50-operating life of the Project.

86 Gunton and Joseph Reconsideration Report (A6L6F4), para. 4

29 (f) Based on evidence on the NEB’s record for the Project that concludes that marine oil spills as small as 629 bbl can cause significant adverse effects and our evidence that the probability of a marine tanker spill ≥ 1,000 bbl is at the high end of our range of 43% to 75%, we conclude that it is likely that marine tanker traffic from the Project will cause significant adverse effects from oil spills.

(g) The costs of a credible worst-case marine tanker spill still exceed available compensation funds. The costs of a credible worst-case marine tanker spill vary between $2.3 and $4.7 billion excluding “passive use” damages. If passive use damages are included, the costs of such a spill would be significantly higher.

(h) The damage cost estimates of a credible worst-case tanker spill exceed available designated compensation funds for marine spills by between $750 million and $3.1 billion.87

5. Gaps in oil spill response in the Nation’s Territory mean spills cannot be cleaned-up

98. An updated report by Elise G. DeCola of Nuka Research and Planning Group entitled “Further Technical Analysis of Oil Spill Response Capabilities and Limitations of the Trans Mountain Expansion Project” (NEB Filing No. A6L6F5) (filed jointly by Squamish, Tsleil- Waututh Nation, Stz’uminus First Nation, Snuneymuxw First Nation, and the City of Vancouver) considers advances in the scientific and technical literature since the original OH-001-2014 proceeding on the Project-related work on marine oil spill response gaps, marine oil spill response capacity and river response capability. The report affirms evidence previously put before the Board (NEB Filing Nos. A4L6A9, A4L6C0, A4L6C1, A4L6C2, A4L6C3), updates that evidence and responds to evidence that has been filed by Trans Mountain and the federal authorities.

99. The report sets out the challenges associated with responding to a spill in the Nation’s territory, particularly in Burrard Inlet and the Lower Fraser River, as well as the inadequacy of the measures currently in place to contain and clean-up a spill.

87 Gunton and Joseph Reconsideration Report (A6L6F4), paras. 5-12 (bold emphasis in original; underlined emphasis added)

30 100. Nuka Research’s response gap analysis concludes that “[n]one of the reconsideration evidence addresses response gaps or response viability, despite the fact that this is an established field of study with well-known methodologies that are relied upon by other governments (US, Norway, Denmark) to inform oil spill contingency planning and response preparedness” and that “[n]othing in the reconsideration evidence suggests that the inputs used in the 2015 response gap analysis have changed”.88 Therefore, the conclusions of that analysis, restated below, continue to apply to the Project:

(a) There is no location along the Project tanker route where on-water oil spill response will always be possible.

(b) There may be times when on-water vessel operations are possible but poor visibility – including darkness – precludes aerial reconnaissance, making it very difficult to track and target oil for recovery.

(c) During the winter, response is not possible between 56% and 78% of the time at sites along the Project tanker route.

(d) If a spill occurs during a time when response gap conditions exist, the unmitigated oil slick will remain in the environment until conditions improve. If the response gap conditions extend for several days, there may not be any opportunity for on-water recovery.

(e) Lack of a response gap does not ensure that a response will occur, nor does it guarantee that the response will be effective.89

101. Nuka Research’s updated response capacity analysis concludes:

(a) On-water oil spill recovery capacity is reduced during winter months by as much as 50% compared to summer.

(b) If spill response were delayed for any reason – lags in detection, poor weather, equipment malfunction – the total volume of oil recovered would decrease significantly. A 48-hour delay in

88 Nuka Reconsideration Report (A6L6F5), para. 4 89 Nuka Reconsideration Report (A6L6F5), para. 4

31 the modeled response to a 16,000 m3 Outer Harbour spill would result in over 11,000 m3 of oil left in the environment.

(c) The modeled response capacity estimates do not consider the potential for shoreline stranding. This may overestimate total recovery at all sites, and most significantly in Burrard Inlet where models show up to 90% of an oil spill stranding on the beaches.

(d) The spill response forces currently available in Southern B.C. have the capacity to recover only 10-20% of a worst case oil spill under favourable conditions.

(e) Current response forces are clustered in the Vancouver Port area, which reduces response capacity for other sites along the Project tanker route.

(f) Night operations require double the personnel and create significant safety risks that may not be justified by the modest improvement to oil recovery from 24-hour operations.

(g) Changes to diluted bitumen density and viscosity within the first few days of the release may render oil spill response systems ineffective.90

102. Nuka notes that the Reconsideration evidence submitted by Trans Mountain that compares the US and Canadian marine oil spill response capacities (A6J6G8) contains misleading and inaccurate information suggesting that Western Canada Marine Response Corporation’s (“WCMRC”) post-Project expansion will result in a more substantial response capacity in Canada than currently exists in the US. Whereas in fact, even if WCMRC realizes the proposed “Tier 5” 20,000 tonne capacity described in the Reconsideration evidence, the on-water recovery capacity in the Canadian Salish Sea region would still be less than half the present capacity in the US Salish sea.91

103. With respect to the river response analysis, Nuka notes that new research supports the conclusion that “conditions in the Lower Fraser River favor sinking or submergence of diluted bitumen during certain conditions.” The Reconsideration evidence of Trans Mountain and Canada

90 Nuka Reconsideration Report (A6L6F5), para. 7 91 Nuka Reconsideration Report (A6L6F5), para. 8

32 does not directly address the topic of oil spill response in rivers, therefore Nuka’s original conclusions, summarized below, remain unchanged:

(a) Timing is critical for river response. If an oil spill occurs at the Port Mann Bridge and moves downriver at 8 km per hour or faster, there may not be time to mobilize and deploy equipment in time to control the spill before it reaches the Lower Fraser Delta. At transport speeds of 12 km per hour or higher, this becomes impossible.

(b) Available river response equipment inventories along the Lower Fraser River are limited.

(c) Existing river response equipment is meant for floating oil, and would not be effective in the event that a diluted bitumen spill submerged or sank in the Lower Fraser River.

(d) It is unclear whether adequate equipment, tactics, and trained personnel are in place to control oil spills in fast water conditions (greater than 0.8 knots/1.5 km per hour).

(e) Trans Mountain’s evidence lacks critical detail about how responders will manage practical and logistical considerations – such as site access, travel routes, boat launch access, and tactical planning – that are critical to successful river response.92

104. Notably, Nuka Research notes that the evidence filed by Canada (A6J6L9) highlights a number of new initiatives, programs, and research studies under the Oceans Protection Plan (“OPP”), many of which are intended to enhance marine oil spill response capacity in British Columbia and across Canada. However, as all initiatives are in various states of development or implementation, Nuka finds there are no metrics available to evaluate their impacts to date or anticipated future improvements. Nuka Research concludes that “[u]ntil Oceans Protection Plan initiatives are completed and fully operational, they should not be considered as mitigation for Project-related impacts.”93

105. If additional time had been available to prepare evidence in the Reconsideration, Nuka Research could have performed a number of follow-up studies to contribute additional empirical

92 Nuka Reconsideration Report (A6L6F5), para. 11 93 Nuka Reconsideration Report (A6L6F5), para. 12

33 evidence to support the NEB decision on marine shipping impacts. These include: (a) application of refined tools and approaches to evaluating marine oil spill response viabilities and gaps in the Project area, to refine estimates as to how frequently Project tankers operate in conditions where marine oil spill response would be favourable, impaired or impossible; and (b) application of refined analytic techniques to evaluate marine oil spill response capacity from existing and proposed future marine response systems stockpiled by Canada and by WCMRC to optimize response systems and inform future priorities for building functional response capacity.94

6. The need for the Project must be re-evaluated

106. The evidence of the risks and adverse effects of Project-related tanker traffic needs to be considered in light of economic developments since the original OH-001-2014 proceeding.

107. The evidence of the Nation includes an expert report by Mr. David Hughes entitled “Report on the Need For, and Economics Of the Trans Mountain Expansion Project” (NEB Filing No. A6L6F5) (filed jointly by Squamish, Tsleil-Waututh Nation, Stz’uminus First Nation, and Snuneymuxw First Nation) that examines new developments regarding the economics of the Project since the completion of the Board’s original Report.

108. Based on his examination of new developments, Mr. Hughes considers (i) whether there is still a need for the Project; and (ii) whether the Project will increase the price per barrel of oil that Canadian producers are able to obtain.95

109. Mr. Hughes identifies a number of material changes that have taken place since 2016 that materially affect the conclusions the NEB reached in its 2016 Report in connection with the need for and benefits of the Project. The principal findings on need are that:

(a) New pipeline export capacity with scheduled in-service dates in the next few years (Line 3, Enbridge Mainline, and Keystone XL) will provide sufficient pipeline capacity to meet WCSB oil transportation needs until 2031 based on the NEB reference case production oil forecast and until 2033 based on the CAPP supply forecast, without using rail and without the Project. This

94 Nuka Reconsideration Report (A6L6F5), para. 13 95 Hughes Reconsideration Report (A6L6F5), para. 1

34 new pipeline export capacity will address the current shortage of pipeline space and eliminate the current high WCSB price discounts.

(b) Meeting Alberta’s 100 megatonne (Mt) cap on oil sands emissions will constrain Western Canadian oil production growth in all of the NEB’s scenarios except the low price case, which doesn’t reach the annual 100 Mt emissions limit. The emissions cap will have the following implications for WCSB transportation needs:

(i) Existing and new pipeline export capacity (Enbridge Line 3 and Mainline expansions) are sufficient to meet WCSB transportation needs under the NEB low price, technology, and reference case to 2036 without the Project, Keystone XL and without using rail.

(ii) The NEB reference case would require a small amount of available rail capacity under the cap without Keystone XL, and no rail with it.

(c) Meeting Canada’s emissions reduction targets under the Paris Agreement and 2050 aspirations will require further downward pressure on Western Canadian supply beyond Alberta’s oil sands emissions cap. The NEB’s reference case supply projection, with the cap, would require sectors in the economy outside of oil and gas production to reduce emissions 48% by 2030 and 88% by 2040, which would be very difficult without further cuts to oil and gas production.96

110. Mr. Hughes further concludes that tolls of shipping crude oil to south China are likely to be between $US2.68 and $US3.08 per barrel higher than tolls to refineries on the U.S. Gulf Coast, and $US5.63 to $US6.03 per barrel higher than tolls to refineries in the U.S. mid-west. Based on these higher tolls of shipping crude oil on the Project to Asia compared to shipping crude oil to the U.S., selling crude oil to Asia via the Project would cost Canadian producers approximately $14 to $16.1 billion over the 21-year operating period assumed by Trans Mountain.97

111. Mr. Hughes finds that the claim by Trans Mountain that the Project will provide Canadian producers with a benefit of $73.5 billion over 21 years is stale-dated, inaccurate and cannot be relied upon. Trans Mountain’s estimate of the benefit the Project will provide to

96 Hughes Reconsideration Report (A6L6F5), para. 3 97 Hughes Reconsideration Report (A6L6F5), para. 4

35 Canadian producers is based on the erroneous assumption that if Project is not built, crude oil would have to be shipped by rail. Crude oil will be shipped on Enbridge and TransCanada pipelines to the U.S. Gulf Coast and mid-west if the Project is not built, and will capture higher prices than shipping to Asia via the Project.98

112. Mr. Hughes concludes that:

… recent developments since completion of the NEB’s 2016 report have confirmed that the Project is not needed and building the Project would likely impart a substantial price penalty to Canadian producers compared to other pipeline export capacity likely to come onstream before the Project could be built. This other pipeline export capacity will meet the longterm transportation needs of WCSB producers and eliminate the current pipeline export capacity shortage and the current high WCSB price discounts.99

I. CANADA’S APPROACH TO REINITIATING PHASE III CONSULTATION

113. On October 3, 2018, Canada announced that it will re-initiate Phase III consultation on the Project.100

114. Canada claims in its Direct Evidence that Canada will consult with Indigenous communities governed by four core objectives developed by Canada:

(a) Consult with all Indigenous communities, governments and nations that are potentially impacted by the Project;

(b) Tailor consultations to reflect the potential impacts, preferences and capacities of each group and outstanding concerns with the Project from the existing Phase III consultations;

(c) Consult meaningfully through a substantive two-way dialogue and accommodations, where appropriate; and

98 Hughes Reconsideration Report (A6L6F5), para. 4. The average price over the past 12 months of WCS- equivalent heavy, sour crude oil is $US1.04 per barrel higher for deliveries to the U.S. Gulf Coast compared to deliveries to Asian markets (from 2013 to 2017 U.S. Gulf Coast prices averaged $US3.46 per barrel higher than Asian markets). 99 Hughes Reconsideration Report (A6L6F5), para. 5 100 A95292-2 2018-10-31 Opening Statement and Evidence (A6J6L9) (“Federal Authorities Direct Evidence”), p. 79

36 (d) Consult in a way that is fully consistent with meeting Crown’s obligations under s. 35 of the Constitution Act, 1982, and the Crown’s commitments to advance reconciliation with Indigenous peoples, including its pledge to implement the United Nations Declaration on the Rights of Indigenous Peoples.101

115. Canada further claims that information made available to it throughout the consultation process will be consolidated into a revised Crown Consultation and Accommodation Report (the “CAR”) to be provided to the Governor in Council.102

116. Canada acknowledged that it owes Squamish a duty of consultation and, if necessary, accommodation in relation to the Project. Canada assessed its consultation obligations to be at the deeper end of the Haida spectrum, but Canada assessed the Squamish’s claim to Aboriginal rights in the project area to be “low to moderate” and its claim for Aboriginal title to be “low” in the 2016 CAR.103 As described below, Squamish objected to this assessment in the prior Phase III consultation and before the FCA. In the Reconsideration hearing, Canada did not share the basis for this assessment with Squamish, or the reason that Canada has put information before the Board in the 2016 CAR that the Nation has informed Canada is incorrect and unreasonable.

117. The 2016 CAR has not been updated since the FCA found Canada’s consultation as detailed in the 2016 CAR to be inadequate.104

J. CORRESPONDENCE WITH THE CROWN

118. Since the decision of the FCA on the Project, Canada has not engaged, substantively or otherwise, with the Nation’s outstanding concerns with the Project. The Nation also has not been

101 Federal Authorities Direct Evidence (A6J6L9), p. 79 102 A97000-9 Response to Information Request from Squamish Nation (A6Q5W1) (“Canada Response to Squamish Nation”), IR 1(j); also see IR 1(g)-1(i) 103 A95292-17 Annex 04.C.01 (A6J6R4) Joint Federal/Provincial Consultation and Accommodation Report for the Trans Mountain Project Including Relevant Annexes (“2016 CAR”), Appendix C.4 Squamish Nation, pp. 1-2 104 Canada Response to Squamish Nation (A6Q5W1), IR No. 1(h)

37 informed of the process by which Canada will discharge the duty to consult and accommodate the Nation for the Project.105

119. The Nation is concerned about the scope of the Reconsideration. On October 31, 2018, the Nation met with Minister of Natural Resources, Amarjeet Sohi, with respect to the Nation’s early concerns with Canada’s approach to consultation on the Project, including the strict time limit of 155 days for the Board’s hearing process and the limited scope of the Board’s Reconsideration that Canada is relying on to the extent possible to fulfill the duty to consult. On November 5, 2018, the Nation wrote to the Minister to follow-up on the concerns raised in this initial meeting and reiterated its request for a response. The Minister did not respond. 106

120. The October 31st meeting is the only meeting that Canada’s consultation representatives have had with the Nation on the Project since the FCA decision.107

121. On November 9, 2018, Canada wrote to Squamish asking whether the Nation intends to participate in consultation and requesting comments once again on the 2016 CAR.108

122. On November 20, 2018, Squamish wrote to Minister Sohi to follow-up on the November 5th letter and in response to the November 9th letter of Canada. Squamish confirmed its intention to participate in consultation. The Nation reiterated that the overall timeline for the Board for the Reconsideration set by Cabinet remains grossly inadequate and unfair to Squamish, despite the NEB granting an extension for the Nation to submit its evidence, and asked Canada for a response to their request for an overall extension.109

123. Squamish stressed that it had provided extensive comments on the 2016 CAR in the previous Phase III consultation and submissions before the FCA, particularly with respect to the determination that impacts to the Nation's rights “were up to minor” (that Squamish objected to as incorrect and unreasonable) and stated that:

105 Squamish Nation Direct Evidence (A6L6J5), para. 58 106 Squamish Nation Direct Evidence (A6L6J5), paras. 59-60; Annex B 107 Squamish Nation Direct Evidence (A6L6J5), para. 61 108 Squamish Nation Direct Evidence (A6L6J5), para. 62; Annex C 109 Squamish Nation Direct Evidence (A6L6J5), para. 63

38 Asking the Nation to once again comment on a document that we have made clear to Canada does not accurately represent our rights, impacts to those rights from the Project and our outstanding concerns with the Project, is not a meaningful attempt at engagement and ignores the time and effort that Squamish put into the initial round of consultation with Canada that was found to fall well short of the required standard.

124. The Nation asked that Canada review Squamish’s prior submissions before the NEB, during the initial Phase III consultation with Canada and before the FCA, and provide a response to the Nation on how Canada plans to address the concerns outlined in those submissions in the reinitiated Phase III consultation process.110

125. Canada has put the 2016 CAR into evidence before the Board. The Nation’s evidence is that the 2016 CAR does not accurately represent the Nation’s rights, impacts to those rights from the Project and the Nation’s outstanding concerns with the Project.111

126. Canada has further put evidence before the Board on overarching government initiatives (such as the OPP and the Indigenous Advisory and Monitoring Committee). However, Squamish has made it clear to Canada, including before the FCA, that these initiatives do not address the Nation’s specific concerns with the Project.112

127. With respect to the Indigenous Advisory and Monitory Committee, the Nation wrote to Canada in the initial consultation process for the Project noting that development of the Committee “does not address Squamish’s concerns with the lack of a proper risk assessment for the Project, and the potentially catastrophic consequences of accidents and malfunctions associated with the Project.” The Nation stated that “Squamish does not want to be relegated to a clean-up crew in our territory.”113

128. The Indigenous Advisory and Monitory Committee does not include a representative from Squamish and does not represent Squamish, particularly with respect to consultation on the Project.114

110 Squamish Nation Direct Evidence (A6L6J5), para. 64; Annex D 111 Squamish Nation Direct Evidence (A6L6J5), para. 65 112 Squamish Nation Direct Evidence (A6L6J5), para. 66 113 Squamish Nation Direct Evidence (A6L6J5), para. 67; Annex E 114 Squamish Nation Direct Evidence (A6L6J5), para. 68

39 129. Further, any Squamish participation in the West Coast Energy Initiative and other general initiatives is outside the consultation and accommodation process for the Project, and is not engagement on the Project. If Canada is to rely on particular initiatives as consultation or accommodation for Project risks and impacts, it is imperative that Canada make that intention clear to the Nation before any engagement takes place. This way the Nation can ensure that its limited resources and personnel are properly allocated to those initiatives.115

130. The Nation was surprised to see such initiatives as the “Cumulative Effects Monitoring (2017)” proposal included in Canada’s evidence for the Project. This initiative is not part of consultation on the Project. However, it does highlight a concern of the Nation that more needs to be known about the current cumulative impact of the traffic in Burrard Inlet on Squamish rights before additional tanker traffic is approved for the Project.116

K. LEGAL FRAMEWORK FOR THE RECONSIDERATION

1. Regulatory Scheme

131. As the Project includes an interprovincial pipeline, the Project requires a CPCN and other related regulatory approvals under the NEB Act. The NEB is tasked with undertaking a review of the Project under the NEB Act and an environmental assessment of the Project under the CEAA 2012, and producing a recommendation and report for the Governor in Council (s. 52 of the NEB Act and s. 29 of the CEAA 2012).

132. The Board’s recommendation is, pursuant to subsection 52(2) of the NEB Act, to be based on “all considerations that appear to it to be directly related to the pipeline and to be relevant” and the Board may have regard to five specifically enumerated factors which include “any public interest that in the Board’s opinion may be affected by the issuance of the certificate or the dismissal of the application.”

133. Subsection 19(1) of the CEAA, 2012 mandates that the Board take into account a number of enumerated factors when conducting the environmental assessment. As the responsible

115 Squamish Nation Direct Evidence (A6L6J5), para. 69 116 Squamish Nation Direct Evidence (A6L6J5), para. 70

40 authority, the Board is also required to take into account the environmental effects enumerated in subsection 5(1) of the CEAA 2012. These effects include changes caused to the land, water or air and to the life forms that inhabit these elements of the environment. The effects to be considered further include the effects upon Aboriginal peoples’ health and socio-economic conditions, their physical and cultural heritage, their current use of lands and resources for traditional purposes, and any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.117

134. The Board is required under subsection 29(1) of the CEAA 2012 to make recommendations to the Governor in Council with respect to the decision to be made by the Governor in Council under paragraph 31(1)(a) of that Act—a decision about the existence of significant adverse environmental effects and whether those effects can be justified in the circumstances.118 The Board is further required to comply with s. 79 of the Species at Risk Act (“SARA”).

135. After the NEB submits its report, the Governor in Council may, by order, (i) refer the Board’s recommendation, or any of the terms or conditions, set out in the report, back to the Board for reconsideration. (ii) direct the Board to issue a CPCN in respect of the pipeline or any part of it and to make the CPCN subject to the terms and conditions set out in the report; or (iii) direct the Board to dismiss the application for a certificate (ss. 53 and 54 of the NEB Act). The Governor in Council is also required to determine whether the Project is likely to cause significant adverse environmental effects and whether those effects can or cannot be justified in the circumstances (CEAA 2012, s. 31).

2. Scope of the Reconsideration

136. Squamish was one of the applicants that challenged the original approval of the Project before the FCA. The FCA agreed with the applicants in Tsleil-Waututh Nation v. Canada (Attorney-General), 2018 FCA 153 that the “Board unjustifiably excluded Project-related shipping from the Project’s definition” and this undermined the central finding of the Report that

117 Tsleil-Waututh Nation v. Canada (Attorney General), 2018 FCA 153, para. 60 118 Tsleil-Waututh Nation, para. 62

41 the Project was not likely to cause significant adverse environmental effects.119 The FCA further agreed that Canada’s consultation for the Project “fell well below the standard required by the Supreme Court of Canada.”120

137. The FCA found that “[t]he unjustified exclusion of marine shipping from the scope of the Project led to successive, unacceptable deficiencies in the Board’s report and recommendations” and that “[w]ith such a flawed report before it, the Governor in Council could not legally make the kind of assessment of the Project’s environmental effects and the public interest that the legislation requires.”121

138. The FCA directed that the NEB’s recommendations and Report be referred back to the Board with the specific direction that it ought to reconsider the environmental assessment of the Project in light of the inclusion of Project-related marine shipping in the Project’s definition. Canada was also required to “re-do its Phase III consultation”.122

139. The FCA held that (at para. 770):

Specifically, the Board ought to reconsider on a principled basis whether Project-related shipping is incidental to the Project, the application of section 79 of the Species at Risk Act to Project- related shipping, the Board’s environmental assessment of the Project in the light of the Project’s definition, the Board’s recommendation under subsection 29(1) of the Canadian Environmental Assessment Act, 2012 and any other matter the Governor in Council should consider appropriate.123

140. Importantly, the FCA did not find that the environmental assessment of Project-related marine shipping under CEAA 2012 was adequate, as the Board had scoped out marine shipping from the designated Project and had not applied the mandatory factors under CEAA 2012 to Project-related marine shipping – a decision that led to successive, unacceptable deficiencies in the Board’s report and recommendations.124

119 Tsleil-Waututh Nation, paras. 5, 470, 764-766 120 Tsleil-Waututh Nation, para. 6 121 Tsleil-Waututh Nation, paras. 5, 470, 766 122 Tsleil-Waututh Nation, para. 770 123 Tsleil-Waututh Nation, paras. 768-771 124 Tsleil-Waututh Nation, para. 5, 393, 470

42 141. Through Order in Council P.C. 2018-1177 (the “OIC”), the Governor in Council referred the Report, including the recommendations and terms and conditions, back to the Board for reconsideration with specific reference to paragraph 770.125

142. In the Reconsideration, the Board should have as its goal providing the Governor in Council with sufficient information so that the Governor in Council may make a valid public interest determination and assessment of the environmental effects of the Project.

143. In order for this new panel to do so, the panel must reweigh the benefits and burdens of the Project against the new and updated information that has come out of this process and provide updated recommendations to the Governor in Council. Those recommendations should be based on the best and most up to date information on both the Project benefits and burdens.

144. It is not sufficient for the Board to isolate the effects of Project-related marine shipping from the rest of the Project’s environmental effects. The environmental effects of the Project as a whole must be considered and weighed in the justification analysis against new and updated information regarding the need for the Project and its economics, including that which was summarized above at paras. 76-112.

145. Further, the Nation is deeply connected to and dependent on their lands, waters and resources that stand to be impacted by the Project, and it is artificial and not in keeping with how they use their Territory to consider certain Project effects from marine shipping on Aboriginal rights, title and reserve interests in isolation from the broader Project impacts. A fulsome assessment of Project impacts on the Squamish Nation and exploration of avoidance, mitigation and accommodation measures based on the most up to date information is required to assist in discharging Canada’s duty. That assessment has not occurred before the Board.

3. Limited List of Issues and Constrained Timeline

146. The Reconsideration has proceeded on a limited List of Issues before the Board and under an extremely constrained timeline.126

125 A94111-1 OIC P.C. 2018-1177 from the Privy Council - Trans Mountain Expansion (A6H6Y0)

43 147. The limited scope of the Reconsideration in Squamish’s submission will prevent the Board from fulfilling its obligations under the CEAA 2012, the SARA and the NEB Act, has breached the Nation’s participatory rights and has rendered the Board’s process of little to no utility in discharging the duty to consult the Nation.

148. The Board has determined that to include Project-related marine shipping between the Westridge Marine Terminal and the 12-nautical mile territorial sea limit in the “designated project” that must be assessed under the CEAA 2012. However, the Board scoped out Project- related marine shipping activities in the Exclusive Economic Zone (“EEZ”) from the “designated project”, and the need for and the socio-economic effects of the Project from the List of Issues. Squamish supported a motion by Tsleil-Waututh Nation that sought to have these issues considered in the Reconsideration, but the Board denied the motion.127

149. The Nation further supported a motion by Living Oceans/Raincoast seeking that the Board require Trans Mountain to conduct a proper risk assessment of Project-related marine shipping that includes all SARA listed species that may be affected by Project-related marine shipping and adopts the submissions of Living Oceans/Raincoast. These species include species that have particular cultural importance to the Nation, such as the southern resident killer whale. The Nation’s position was that it is essential that the Board have full information before it on the risks proposed to each of these species in the Reconsideration and on any available mitigation measures. The Board also denied the motion by Living Oceans/Raincoast.128

150. The Nation further directly raised with Canada the inappropriately constrained timeline under which the Reconsideration was proceeding and that this would prevent Squamish from meaningfully presenting its case to the Board. Squamish did not receive a response from Canada to their request to extend the timeline for the Reconsideration to allow for meaningful participation by the Nation. In the result, Canada has allowed the Reconsideration to proceed to a

126 Hearing Order MH-052-2018 127 A96235-1 2018-11-29 LT Squamish Nation to NEB re- support for applications/motion (A6L2D5); A96969-1 NEB Ruling 22 (A6Q5C9) 128 A96235-1 2018-11-29 LT Squamish Nation to NEB re- support for applications/motion (A6L2D5); A97046-1 NEB Ruling No. 24 (A6Q6U7)

44 close without addressing the Nation’s concern that it has not been afforded the opportunity to put its case forward and respond to the case of Trans Mountain and the Federal Authorities.129

151. Squamish’s submissions on the Reconsideration are without prejudice to its position that the Reconsideration has been unduly narrow and excluded from review effects that it was required to take into account under the CEAA 2012, and in the public interest determination under the NEB Act. It is not a reasonable approach to the Reconsideration to consider fresh evidence on certain aspects of the Project, but refuse to consider updated evidence on other aspects, particularly evidence relevant to the need for the Project and the justification analysis. Squamish’s position further remains that this new panel was required to undertake a de novo consideration of the evidence before the Board in the original proceeding and that the timeline for participation remained unduly constrained and did not meet the requirements of duty of fairness.130

4. Constitutional Obligations of the Board

152. The duty to consult is grounded in the honour of the Crown and the protection provided for “existing aboriginal and treaty rights” in subsection 35(1) of the Constitution Act, 1982. The duties of consultation and, if required, accommodation form part of the process of reconciliation and fair dealing, which is not a mere interest but a constitutional imperative for the Crown.131

153. The Crown has an obligation to consult an Aboriginal group when the Crown (1) has knowledge, actual or constructive, of a potential aboriginal claim or right, and (2) contemplates conduct that (3) might adversely affect the aboriginal claim or right.132

154. The NEB is required and empowered to consider whether Canada’s constitutional obligations to the Nation have been met prior to making a recommendation of whether the Project is in the public interest. A Project cannot be in the public interest if Canada’s obligations under s.

129 Squamish Nation Direct Evidence (A6L6J5), paras. 60, 64, Annex B and D 130 Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, paras. 21-28; Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302, para. 20; Sara Blake, Administrative Law in Canada, 5th ed. (Toronto: LexisNexis, 2011), pp. 143-146 131 Tsleil-Waututh Nation, para. 486; Haida Nation v. British Columbia, 2004 SCC 73, para. 32; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, para. 1; Gitxaala Nation v. Canada, 2016 FCA 187, para. 171 132 Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, para. 31, citing Haida, para. 35

45 35(1) of the Constitution Act, 1982 remain outstanding. The FCA in Tsleil-Waututh Nation held as follows in this regard (at para. 507):

…it is important to understand that the public interest and the duty to consult do not operate in conflict. As a constitutional imperative, the duty to consult gives rise to a special public interest that supersedes other concerns commonly considered by tribunals tasked with assessing the public interest. In the case of the Board, a project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (Clyde River, paragraph 40).

155. As such, contrary to the argument of Trans Mountain at p. 9, the Board cannot recommend that the Project is in the public interest until the constitutional obligations to Squamish and other First Nations have been discharged.

156. The requirement to consider the environmental effects specifically relevant and directed to Aboriginal peoples is further required under s. 5(1)(c) of the CEAA 2012.

L. THE BOARD SHOULD RECOMMEND THAT THE PROJECT IS LIKELY TO CAUSE SIGNIFICANT ADVERSE ENVIRONMENTAL EFFECTS THAT CANNOT BE JUSTIFIED

1. Introduction

157. The Board is tasked with making a recommendation to the Governor in Council under s. 29(1) of the CEAA 2012 about whether the Project is likely to cause significant adverse environmental effects. This analysis requires the Board to determine whether after taking into account any mitigation measures the Project’s residual environmental effects are likely, significant and adverse.

158. Section 19 of the CEAA 2012 mandates, among other things, that the Board consider 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; the significance of the effects; mitigation measures that are technically and economically feasible and that would mitigate any significant adverse environmental effects of the designated project; the purpose of the designated project; and the

46 alternative means of carrying out the designated project that are technically and economically feasible and the environmental effects of any such alternative means.133

159. The Board previously found that the Project would likely cause significant adverse effects in four respects – greenhouse gas emissions from Project-related marine vessels, to southern resident killer whales and related Indigenous cultural uses, and in the case of a large or credible worst-case oil spill. No mitigation measures proposed in the Reconsideration would alter these significance findings.

160. In fact, the new expert evidence of Squamish in the Reconsideration reveals that the Board made factual errors in concluding that oil spills are unlikely. The evidence demonstrates that spills from the Project are likely and that the environmental effects of such spills, even small to medium sized spills, would be more severe and long-term than as previously found; and that there are not sufficient resources to respond to spills of diluted bitumen, particularly if the diluted bitumen submerges or sinks (which it is estimated to do in one to two days).

161. The new direct and oral evidence of Squamish further establishes that Project-related marine shipping from the Project would significantly adversely impact the current uses of the lands, waters and resources by Squamish members for traditional purposes, particularly with respect to the uses around the Westridge Marine Terminal and with respect to certain species of importance like the southern resident killer whale. The evidence of Squamish is that an oil spill from Project-related marine shipping would be catastrophic to the resources, including Sockeye salmon, upon which the Nation’s members depend.

2. Oil Spills from the Project are likely to happen

162. The Board concluded in the original Report that while the consequences of large spills could be high, the likelihood of such events occurring would be very low given the extent of the mitigation and safety measures that would be implemented.134

133 CEAA 2012, s. 19(1) 134 NEB Report, xii

47 163. The new and updated expert evidence of Dr. Gunton and Dr. Joseph in the Reconsideration as detailed above finds that the Board made factual errors in determining that large spills are unlikely to occur. Their report establishes that Trans Mountain’s tanker spill risk assessment underestimates the probability of spills and that it would be imprudent and contrary to the precautionary principle to rely on Tran Mountain’s lower bound tanker spill probability estimate of 16%.135

164. The report notes that an important consideration in assessing spill risk is determining the spill size categories to use for estimating likelihood of spills. The report concludes that using the US BOEM OSRA probability of a spill size of ≥1,000 bbl is the relevant spill size definition to use in assessing likelihood from the Project, given that the evidence submitted to the NEB and other evidence they have reviewed in their report concludes that small oil spills can cause significant adverse effects.136

165. The choice of this spill volume is consistent with the evidence of Dr. Short that small to medium sized spills can cause significant adverse environmental effects, and the experience of Squamish with the 2007 (approximate volume 1,572 bbl) and 2009 (approximate volume 1,258 bbl) spills from the Trans Mountain pipeline system. The environmental effects of the 2007 and 2009 spills are detailed in the City of Burnaby Direct evidence.137

166. The report finds that probability of a marine tanker spill for the Project over a 50-year operating period based on the NEB definition of the marine project area ranges between 43% and 75%, with the best estimate based on the precautionary principle being at the upper end of this range. The lower bound (43%) is based on TM’s New Case 1 spill probability estimate and the upper bound (75%) is based on the US BOEM’s OSRA methodology for tanker spills ≥1,000 bbl in US ports (Figure ES-1).138

135 Gunton and Joseph Reconsideration Report (A6L6F4), paras. 2, 4, 5 136 Gunton and Joseph Reconsideration Report (A6L6F4), paras. 6, 10 137 Short Reconsideration Report (A6L6F5), para. 8(d); A96470-2 2018-12-05 City of Burnaby Direct Evidence (A6L6Z8), paras. 23-33 138 Gunton and Joseph Reconsideration Report (A6L6F4), para. 7

48 167. Further, if Canada’s proposed oil spill risk management plans are not fully and effectively implemented and/or Canada’s oil spill risk management capacity is not equivalent to the US, then the upper bound probability of a tanker spill will be higher than 75%.139

168. The probability of a marine terminal spill is estimated as 77% for spills less than 63 bbl and 19% for spills between 63 and 629 bbl over a 50-operating life of the Project. 140

169. Thus, based on evidence on the NEB’s record for the Project that concludes that marine oil spills as small as 629 bbl can cause significant adverse effects and their evidence that the probability of a marine tanker spill ≥ 1,000 bbl is at the high end of the range of 43% to 75%, the report concludes that it is likely that marine tanker traffic from the Project will cause significant adverse effects from oil spills.141

170. Contrary to the assertions of Trans Mountain in reply, the US BOEM OSRA method provides a reliable estimate for oil spill risk that is employed by the U.S. government to estimate oil spill probabilities for platform, pipeline, and tanker spills, as well as risks to the environment. The oil spill occurrence data for the US BOEM OSRA model has been recently updated (US BOEM, 2016) and incorporates the effects of recent mitigation measures that have improved tanker safety. Dr. Gunton and Dr. Joseph acknowledge in the report that estimating marine spill risk is challenging and that future trends are uncertain (future incident rates may decline due to technological improvements or may rise due to increased tanker traffic and an aging fleet). Dr. Gunton and Dr. Joseph addressed these challenges by carefully evaluating the strengths and weaknesses of different methods of estimating spill risks, applying the most appropriate methods, and adhering to the precautionary principle. Based on their analysis and taking into account proposed mitigation measures, they conclude that it is likely that marine tanker traffic from the Project will cause significant adverse effects.142

139 Gunton and Joseph Reconsideration Report (A6L6F4), para. 7 140 A96612-2 Reply Evidence (“Trans Mountain Reply Evidence”) (A6L9U8), pp. 18-20; Gunton and Joseph Reconsideration Report (A6L6F4), para. 9 141 Gunton and Joseph Reconsideration Report (A6L6F4), para. 10 142 Gunton and Joseph Reconsideration Report (A6L6F4), para. 13

49 3. Oil Spills from the Project will likely cause significant adverse environmental effects

171. The Reconsideration evidence demonstrates that oil spills will cause significant adverse environmental effects and that there are not sufficient resources to mitigate their effects.

172. Squamish has provided evidence in the Reconsideration that oil spills from the Project- related marine shipping in the Nation’s territory will cause significant adverse effects on: fish and fish habitat, aquatic species, migratory birds, health and socio-economic conditions of Squamish Nation members, physical and cultural heritage of the Squamish, Squamish’s current use of lands and resources for traditional purposes, and structures, sites or things that are of archaeological significance to the Nation, including cemeteries, burials, fish traps or fish weirs, canoe runs, and rock art.143

173. In revisiting the significance determination from oil spills from the Project under CEAA 2012, the Board should consider the following new and updated evidence:

(a) Diluted Bitumen will submerge in the Fraser River Estuary in one or two days

174. Dr. Short’s Reconsideration Report as detailed above establishes that diluted bitumen products are likely much more prone to submerge in receiving waters within the Fraser River plume in the Georgia Strait than was recognized by the NEB in the original Report. Dr. Short’s updated evidence is that spilled diluted bitumen could submerge within as little as one or two days within the spring freshet of the Fraser River, including within Burrard Inlet. Further, contrary to the NEB’s general conclusions in the original Report that diluted bitumen “would not typically sink in large quantities”144, Dr. Short finds that diluted bitumen could submerge in large quantities over widespread areas if a large oil spill occurred during the conditions leading to freshened surface waters in Burrard Inlet and/or the Fraser River Estuary.

143 Squamish Nation Direct Evidence (A6L6J5), para. 48; Squamish Traditional Use and Occupancy Study – Part 1 (A4L7E3), pp. 9-10, 81 144 NEB Report, p. 136

50 175. Significantly, Dr. Short notes that if the residual bitumen starts to submerge in less than a day or two, it may disappear from the surface of water bodies before oil spill responders can retrieve it. Once submerged, it becomes almost impossible to track and effectively clean-up.

176. Dr. Short’s new evidence highlights the need to consider the particular receiving environment and the diluted bitumen product in making determinations about the propensity for submergence and sinking.

177. A geographically specific assessment is not only preferred, it is required under CEAA 2012. The generic assessment of Trans Mountain based on studies that do not mimic the receiving waters and product to be shipped cannot be relied upon.

178. Dr. Short recommends that additional studies be undertaken to “provide critical information for further assessing the significance of the adverse effects of Project-related oil spills involving dilbit and further understanding how it may not be possible to clean up such spills in Burrard Inlet and the Fraser River Estuary.”145 ECCC recommended that similar information be gathered in the prior proceeding.146 Without such information, the Board cannot be confident that emergency responders will have adequate time for deployment of emergency resources before diluted bitumen begins to sink, resulting in diluted bitumen remaining in the marine environment.

(b) Environmental effects of spills will be high magnitude and of long duration

179. The Board found in the original Report that:

Specific to potential spills in Burrard Inlet, the Board heard considerable concern regarding potential spill risk, the resultant potential effects from a large spill, and Trans Mountain’s exclusion of assessment of those effects from its environmental effects assessment. As discussed further in this chapter and Chapter 10, the Board finds that based on evidence filed by Trans Mountain and intervenors, a large spill in Burrard Inlet would result in significant adverse environmental and socio-economic effects. Evidence filed by parties such as the City of Vancouver, City of Burnaby and the Tsleil-Waututh First Nation indicate the potential extent of such effects. However, based on the evidence before it, the Board finds that a large spill in Burrard Inlet is not a likely event.

145 Short Reconsideration Report (A6L6F5), para. 50 146 C131-8-2 Environment and Climate Change Canada Written Argument-in-Chief (A4X3X1), pp. 118-121

51 The Board does not accept the assertion made by participants that spill volumes ranging from 8 000 m3 at the Westridge Marine Terminal to 16 000 m3 at other locations in Burrard Inlet are credible worst-case scenarios… The Board accepts Trans Mountain’s evidence in response to the assertion made by Tsleil-Waututh Nation, City of Vancouver and the City of Burnaby that a potential large spill for a tanker at anchor in English Bay is not credible. Among other reasons, Trans Mountain said that there is no incident on record of a vessel being struck by another while at anchor in English Bay; in the event of a collision, there would not be sufficient energy to puncture both hulls of a double hull tanker; and a laden tanker would not be likely to anchor in English Bay.147

180. The original NEB panel did not consider adverse ecological effects that would ensue from oil spills that could originate from locations along the marine shipping route other than those included in Trans Mountain’s modeling efforts.

181. The Board failed to take into account ecological effects from credible spills that are smaller than Trans Mountain’s worst-case scenarios but that are more likely to occur. Dr. Short’s evidence is that even 100 m3 to 1,000 m3 spills can cause extensive and prolonged ecological damages. These types of spills can cause substantial mortalities to seabirds, and estimated effects for small to medium spills in Canada and in Alaska have the potential to contaminate tens of kilometers of shorelines on time scales of decades.148

182. Dr. Short’s evidence further establishes that oil originating from locations other than those included in Trans Mountain’s modeling could be transported to sensitive shorelines and species such as English Bay and Burrard Inlet; and possibilities for long-term ecosystem-level effects, which have to potential to alter marine ecosystem functioning on decadal time scales or longer.149

183. With respect to the environmental effects of oil spills on the environment in Burrard Inlet and the Fraser River Estuary, the evidence for the Reconsideration confirms that the effects would be of high magnitude and long-term:

(a) Ecological damage from a credible, worst-case spill could seriously de-stabilize the marine ecosystem of the Strait of Georgia, possibly irreversibly, including

147 NEB Report, p. 378 148 Short Reconsideration Report (A6L6F5), paras. 95, 97-98, Appendix 1, para. 7(c) and (d) 149 Short Reconsideration Report (A6L6F5), paras. 94-98

52 resulting in mortalities of 100,000–500,000 birds; high mortalities of marine mammals including species such as killer whales, porpoises, dolphins and seals that, like seabirds, routinely inhabit the sea surface; materially contribute to the extinction risk of the southern resident killer whale, which would permanently alter ecosystem functioning in the Salish Sea.150

(b) Also, once oiled, many of the shorelines of Burrard Inlet and the rest of the Fraser River delta would retain oil residues for months to several decades, presenting long-term reservoirs of contamination for organisms associated with these shorelines, and hence substantial adverse consequences for subsistence uses, tourism and commercial fishing.151

(c) Widespread contamination of shorelines following a large oil spill all but guarantees that people will encounter lingering pockets of oil on high-retention shorelines for many years to decades following a spill. Once stranded on shorelines, diluted bitumen released from an accidental spill may persist for days to several decades or even a century under worst-case conditions.152

184. The evidence in the Reconsideration has to be weighed taking into account evidence that was already on the record on the prior proceeding, including the following:

(a) Oil spills in Burrard Inlet would have extensive consequences – oil spreads quickly in the confined geophysical setting in Burrard Inlet. The combined results of scenarios modelled demonstrate that oil has the potential to spread throughout Burrard Inlet, from the Indian and Port Moody Arms to the Outer Harbour and beyond.153

(b) Diluted bitumen spills would be toxic to salmonid species – Crude oil may coat salmonid species' gills and salmonid eggs causing suffocation and death.

150 Short Reconsideration Report (A6L6F5), para. 97 151 Short Reconsideration Report (A6L6F5), para. 98 152 Short Reconsideration Report (A6L6F5), para. 7(c) 153 C69-44-4 – Oil Spill Trajectory Modelling Report in Burrard Inlet for the Trans Mountain Expansion Project (A4L8F8), p. 3

53 Chemical residues of crude oils (in the form of PAHs) can affect salmonid populations long-term by reducing reproductive success and causing cancer. 154

185. Dr. Short’s evidence on the ecological damage from small to medium sized spills is consistent with Squamish’s experience with the 2007 and 2009 spills from the Trans Mountain pipeline.155

186. Further, Canada admits in the 2016 CAR that even small spills would cause adverse effects to Aboriginal groups:

The Crown acknowledges the numerous factors that would influence the severity and types of effects associated with a pipeline or marine tanker spill, and that an impacts determination that relates the consequences of a spill to specific impacts on Aboriginal groups has a high degree of uncertainty.

In respect of small spills, the NEB found that over the life of the Project, the probability is high. The seriousness of impact on Aboriginal Interests will depend on the size, location and conditions of a spill and the effectiveness of response measures. The Crown acknowledges that Aboriginal peoples who rely on subsistence foods and natural resources are at greatest risk for adverse effects from an oil spill regardless of its size.156 (emphasis added)

187. Despite the lack of assessment by Canada or Trans Mountain in relation to the impacts of the Project on Squamish’s unique rights, title and reserve interests,157 the Direct Evidence of Squamish in the Reconsideration establishes that even a small oil spill will have significant adverse impacts on the Nations’ rights, title and reserve interests, including by threatening the reliance on traditional foods such as salmon, preventing the harvesting of resources from significant and sacred sites, preventing members from carrying out marine-dependent cultural practices that are location specific within the Territory such as spiritual bathing, impairing the

154 C214-18-2 - Attachment A to written evidence of Living Oceans - Fate and effect of oil spills in Burrard Inlet and Fraser River Estuary - Dr Short (A4L9R7), para. 100; C319-27-6 – Squamish Nation – 4. Potential Effects of Diluted Bitumen Spills on Salmonid Species Report (A4L7E7), p. 14; C234-15-2 – Written Evidence of Metro Vancouver - Revised #30, Zoetica Environmental – Clean Version Part 1 (A4T0R6); C234-15-3 – Written Evidence of Metro Vancouver - Revised #30, Zoetica Environmental – Clean Version Part 2 (A4T0R7); C291-1 – Ecojustice – Attachment B to written evidence of Raincoast – Potential effects on salmon of an oil spill into the Lower Fraser River – Logan et al. (A4L9F4) 155 A96470-2 2018-12-05 City of Burnaby Direct Evidence (A6L6Z8), paras. 23-33 156 2016 CAR (A6J6R4), p. 108 157 See the information gaps highlighted in C319-27-6 – 3. Potential Adverse Effects to Squamish Interests – Accidents and Malfunctions Associated with Trans Mountain Expansion Report (A4L7E6), pp. 22-23

54 Nation’s stewardship of the Salish Sea, threatening species of cultural importance to the Nation such as the killer whale, and disrupting the transmission of culture. Such spills would further adversely impact the Squamish’s marine dependent economic interests and the health of members in proximity to the spill.

188. The effects of even a small spill in Burrard Inlet or the Fraser River Estuary would not be short-term and could be catastrophic to the Nation’s reliance on fisheries resources.

189. Further, the assessment of environmental effects must consider that the erosion of the ecosystem in Burrard Inlet has already impacted the practice of Nations’ rights. Adverse environmental effects from the Project-related marine shipping, in conjunction with cumulative effects of existing developments, would result in significant adverse effects to the Nations’ rights, title and reserve interests, and erode the Nation’s efforts at rehabilitating the marine environment.

(c) Oil Spills cannot effectively be cleaned-up

190. The new and updated evidence on the Reconsideration establishes that oil spills from the Project will not be able to be effectively cleaned-up and significant amounts of diluted bitumen will remain in the marine environment.

191. Trans Mountain acknowledges in response to information request 1.1(q) of Squamish that “[d]iluted bitumen that has sunk and cannot be recovered could be left in the marine/aquatic environment”.158

192. Despite additional evidence being put on the record in the Reconsideration, Nuka Research’s concludes that response capacity and capability remains substantially similar and that WCMRC has not added new capacity to detect, track, or recover submerged or sunken diluted bitumen.

193. Significant gaps in spill response remain, notably that: a 48-hour delay in the modeled response to a 16,000 m3 Outer Harbour spill would result in over 11,000 m3 of oil left in the

158 Squamish Nation Reply to Motion to Compel (A6Q8V2), IR No. 1(q)

55 environment; the spill response forces currently available in Southern B.C. have the capacity to recover only 10-20% of a worst case oil spill under favourable conditions; and changes to diluted bitumen density and viscosity within the first few days of the release may render oil spill response systems ineffective.

194. In reply evidence, Trans Mountain asserts that the conclusion by Nuka Research that “the reconsideration evidence does not indicate that WCMRC has added new capacity to detect, track, or recover submerged or sunken diluted bitumen” is factually incorrect, given that WCMRC has developed a draft Sunken and Submerged Oil Plan. However, as highlighted by Squamish in the information request process, the plan does indicate the equipment that WCMRC would have available to clean-up a diluted bitumen spill that has submerged or sunk.159 Thus, the admission of Trans Mountain in the original Board proceeding that “[n]either Trans Mountain nor WCMRC maintains equipment to specifically recover sunken oil” remains valid.160

4. Marine Shipping will likely cause significant adverse environmental effects

195. The evidence on the Reconsideration is that Trans Mountain has underrepresented the increase in tanker traffic proposed by the Project by overestimating the number of tankers that currently service the Westridge Marine Terminal and not accounting for the potential that Panamax tankers would service the expansion. Based on recent data, the Project represents up to a 20-fold increase in tanker traffic.161

196. The Board must reassess its previous significance findings with respect to effects of the Project-related marine shipping on Indigenous groups in light of this projected increase in tanker traffic and in light of the new and updated evidence in the Reconsideration.

159 Trans Mountain Reply Evidence (A6L9U8), p. 21 160 B384-21 Trans Mountain Responses to Squamish Nation F-IR No. 2 (A4L0A8), p. 8 161 A97008-11Trans Mountain Response to City of Burnaby Reconsideration IR No. 1.1(c), 1.1(d) (A6Q5Z6); A96413-3 Huntley Appendix A - report Tankers at the Westridge terminal - NSNOPE (Nov 30 2018) (A6L5F4); A96489-2 (BROKE) Takaro - Major Human Health Impacts of the Increase in Tanker Traffic (A6L7U1); A96413-10 Takaro Appendix A - Major Human Health Impacts of the Increase in Tanker Traffic (Dec 5 2018) (A6L5G1)

56 197. The Board previously found that:

The Board finds that there would be modest burdens sustained by Aboriginal groups as their ability to use the lands, waters and resources for traditional purposes would be temporarily impacted by construction and routine maintenance activities, and that some opportunities for certain activities such as harvesting or accessing sites or areas of traditional use would be temporarily interrupted. For activities directly affected by the WMT, the Board finds that these effects would persist for the operational life of the Project, as traditional activities would not occur within the expanded water lease boundaries. The Board finds that while the effects would be long term in duration, they would be reversible in the long term and would be confined to the water lease boundary for the WMT.162

198. The Nation disputes the Board’s previous findings, including because they were not based on an assessment that considered specific impacts to the Nation’s rights.163 It is essential that the Board revisit this finding taking into account the tanker traffic for the Project.

199. The burdens of the Westridge Marine Terminal and tanker traffic would be significant and long-term to the Nation. The Nation’s Direct Evidence in the Reconsideration establishes that Squamish is highly dependent on the ability to travel throughout the marine/aquatic environment in Burrard Inlet, Fraser River and the Salish Sea, in order to gather traditional foods, maintain familial ties, participate in community and inter-tribal activities, and transmit information about areas of cultural importance.164

200. Harvesting is location specific and depends on the ability to access certain areas at specific times of the year. Transportation routes were and are specific with respect to location, directionality, and timing, reflecting the essential aquatic orientation of Squamish people.

201. The Project and associated tanker traffic in Burrard Inlet and the Salish Sea poses a real threat to these practices by physically interrupting those practices at the location of the expanded Westridge Marine Terminal for the life of the Project (50 plus years) and by eroding the safety and resiliency of the marine environment for the Nation’s paddlers and resource gatherers.

162 NEB Report, xiv 163 C319-27-4 - 2. Potential Adverse Effects of Shipping On Squamish Interests - Increased Volume Effects on Travel Report (A4L7E5) 164 Squamish Nation Direct Evidence (A6L6J5), paras. 14, 19, 43-46

57 202. The waters in and around Burrard Inlet are further used as points to realize Squamish’s spiritual connection to their Territory. The portals that are used to connect to the aqueous spiritual realms are found in several locations that would be impacted by the expanded Westridge Marine Terminal and tanker traffic.165

203. The disruption of the Nation’s practices in and around the expanded Westridge Marine Terminal (which takes up a considerably larger footprint than the existing terminal) for the life of the Project would be catastrophic to Squamish identity and culture, which is heavily dependent on the marine/aquatic environment. These effects would be significant and adverse, and would not be reversible in the long-term. A disruption of that magnitude would mean that an entire generation of the Nation’s members would not be able to practice their right in the places where they have traditionally done so – effectively halting cultural transmission.166

204. Squamish’s cultural and spiritual connection to the marine environment cannot be underestimated. Squamish is further concerned about species that have cultural significance to the Nation disappearing from their waters by the increase in tanker traffic. It used to be that there were an abundance of sea lions, seals, dolphins, porpoise and orcas in southern Howe Sound and Burrard Inlet. Yet, these species have diminished considerably in recent years.167

205. The Board has recognized that the Project poses a significant adverse environmental effects to the southern resident killer whale and associated Indigenous uses. Trans Mountain admits these significance findings have not changed.168

206. The evidence on the Reconsideration is that the Project poses a real threat to wiping out the southern resident killer whale population in the Nation’s Territory. The initiatives proposed to protect this critically important species, while laudable, will not ensure survival if tanker traffic is increased. Losing southern resident killer whales would disrupt the Nation’s cultural connection to this species and would cause irreparable harm to the marine ecosystem in the

165 Squamish Nation Direct Evidence (A6L6J5), para. 54 166 A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), paras. 3162-3164 167 Squamish Nation Direct Evidence (A6L6J5), para. 32 168 Trans Mountain Reply Evidence (A6L9U8), p. 13

58 Nation’s Territory, giving rise to significant adverse effects to the Squamish and their use of the waters and resources within their Territory.

M. FAILURE TO ASSESS THE ALTERNATIVE MEANS OF CARRYING OUT PROJECT-RELATED MARINE SHIPPING

207. The factors under s. 19 of the CEAA 2012 are mandatory. Trans Mountain does not have the ability to elect to not provide the Board with information on certain factors, or to assert to the Board without evidence or analysis that is has fulfilled any of the factors.

208. Trans Mountain has not assessed the alternative means of carrying out Project-related marine shipping that are technically and economically feasible and the environmental effects of any such alternative means as required by s. 19(1)(g).

209. An assessment of alternative means of carrying out Project-related marine shipping must necessarily include an assessment of alternative marine terminals – being the location from where the marine shipping originates. The Board did not assess alternative marine terminuses taking into account their associated shipping routes in the prior proceeding under CEAA 2012 as the Board had scoped out Project-related marine shipping from the designated Project.

210. Trans Mountain relies on its response to a Board IR 2.44 in the original proceeding as satisfying the requirement under s. 19(1)(g) in the Reconsideration, but that response does not include the evidence and analysis of alternative marine terminals and associated shipping routes and a comparison of the environmental effects as required by CEAA 2012.

211. Trans Mountain was required to consider whether there were technically and economically feasible alternative marine terminals and shipping routes and provide a comparative analysis of the environmental effects of those alternatives to the Board, including the criteria on which such an analysis is based.169 Trans Mountain has failed to do so. If a route is more technically challenging or expensive does not mean that it is not feasible, particularly if it produces less environmental effects.

169 Alberta Wilderness Association v. Cardinal River Coals, [1999] 3 F.C. 425 (FCTD), para. 80; Canadian Environmental Assessment Agency, “Addressing ‘Purpose of’ and ‘Alternate Means’ under the Canadian Environmental Assessment Act, 2012” (March 2015)

59 212. The response to Board IR 2.44 does not provide the required evidence to the Board. In the response, Trans Mountain states that it last considered northern versus southern terminuses prior to the 2006 open season. Trans Mountain goes on to list the southern terminals it considered at a “high level” then merely asserts without any evidence or analysis that constructing and operating a new marine terminal and new supporting infrastructure would result in significantly greater cost, larger footprint and additional environmental effects as compared to expanding existing facilities.170

213. Significantly, Trans Mountain does not provide a comparative analysis of the environmental effects of any of the shipping routes associated with alternate marine terminuses listed in this response.

214. A report by EnSys Energy & Systems, Inc. entitled “Potential impacts of reconfiguring the Trans Mountain Expansion Project on oil tanker movement in the Salish Sea”171 submitted by BC Nature and Nature Canada shows that there are viable alternatives worthy of considerations, including an alternative of expanding the Trans Mountain Puget system, either for the entire expanded capacity or for part of the capacity to reduce the number of tankers and consequent environmental effects in the Salish Sea, particularly to the southern resident killer whale. Trans Mountain was required to fully explore these alternatives, but failed to do so.

215. In reply, Trans Mountain admits that it “removed from further assessment” an expansion of the Trans Mountain Puget system.172 Trans Mountain does not justify the reasons for doing so; merely asserting in the response to IR 2.44 that it eliminated an alternative to Washington State from consideration for the following reason:

Washington State – longer pipeline depending on terminus, complex regulatory issues including additional permits required by Washington State and the USA federal government.173

170 B239-25-Trans Mountain Response to NEB IR No. 2.044(a) Attachment 1 (A3Z4T9, A3Z4V1) 171 A96452-3 BC Nature and Nature Canada - EnSys Report on Tanker Movement in Salish Sea (A6L6H3) 172 Trans Mountain Reply Evidence (A6L9U8), p. 36 173 Response to NEB IR No. 2.044(a) (A3Z4T9, A3Z4V1)

60 216. No explanation is given of the “complex regulatory issues”. Trans Mountain does not mention let alone analyze the shipping routes associated with this terminal. No comparison of environmental effects is provided.

217. This is despite the fact that Trans Mountain acknowledges in its Direct Evidence in the Reconsideration that “there are few alternative routes available for ships to access the Pacific ocean form the Port of Vancouver” and that “[t]he current commercial shipping lanes for accessing The Port of Vancouver pass through designated critical habitat for SRKW; therefore, should alternative routing options exist that either avoid, or reduce exposure of this population to disturbance from commercial vessel transits, the alternatives would merit exploration.”174 This fact alone made a thorough exploration of alternatives an essential requirement of the Reconsideration, especially in light of the OIC’s direction that the Board consider “the adverse effects of Project-related maritime shipping on species at risk, including the Northeast Pacific southern resident killer whale population, and their critical habitat” (emphasis added).175

218. Further, the obligation to consider alternatives is even stronger with regard to the Crown’s duty to consult in that the Crown must remain open to considering options to change the proposed plan of action to accommodate Aboriginal concerns. Neither the Crown nor Trans Mountain have put forward sufficient information to allow the Board to consider alternative locations that would not jeopardize Squamish’s rights and title interests. As the Supreme Court of Canada has stated, “consultation is meaningless when it excludes from the outset any form of accommodation.”176

219. An assessment of the alternative means of carrying out Project-related marine shipping that are technically and economically feasible and the environmental effects of any such alternative means was, thus, required to fulfill the Board’s constitutional obligations as well as its statutory obligations under CEAA 2012. The Board does not have such an assessment before it. The omission is fatal to Trans Mountain’s application.

174 Trans Mountain Direct Evidence (A6J6F4), pp. 38-39 175 A94111-1 OIC P.C. 2018-1177 from the Privy Council - Trans Mountain Expansion (A6H6Y0), p. 2 176 Gitxaala, para. 233; Mikisew, para. 54

61

N. THE SIGNIFICANT ADVERSE ENVIRONMENTAL EFFECTS THAT THE PROJECT IS LIKELY TO CAUSE CANNOT BE JUSTIFIED

220. The significant environmental effects of the Project in the chosen location cannot be justified, given new and updated evidence on the economics of the Project that show that the Project is no longer needed or economically viable.

221. As set out above, the report of Mr. Hughes establishes that:

(a) New pipeline export capacity with scheduled in-service dates in the next few years (Line 3, Enbridge Mainline, and Keystone XL) will provide sufficient pipeline capacity to meet oil transportation needs without using rail and without the Project. This new pipeline export capacity will address the current shortage of pipeline space and eliminate the current high price discounts.177

(b) Based on higher tolls of shipping crude oil on the Project to Asia, compared to shipping crude oil to the U.S. Gulf Coast, that selling heavy oil to Asia via the Project compared to selling heavy oil on the U.S. Gulf Coast will cost Canadian producers approximately $14 to $16.1 billion over the 21-year operating period assumed by Trans Mountain.178

(c) Thus, the claim by Trans Mountain that the Project will provide Canadian producers with a benefit of $73.5 billion over 21 years is stale-dated, inaccurate and cannot be relied upon.179

222. Trans Mountain has not updated the evidence on the economics of the Project. Trans Mountain’s request that the Board take “judicial notice” of the need for the Project in its

177 Hughes Reconsideration Report (A6L6F5), para. 3 178 Hughes Reconsideration Report (A6L6F5), para. 4 179 Hughes Reconsideration Report (A6L6F5), para. 4.

62 argument-in-chief should not be condoned by the Board180, particularly given the uncontroverted evidence of Mr. Hughes.

223. As such, in reweighing the Project benefits and burdens, the Board cannot rely on the economic benefits of the Project as previously found by the Board. In taking into account the significant adverse environmental effects of Project-related marine shipping, including the significance adverse impacts to the Nation, it is clear that the burdens of the Project as proposed in the location proposed now clearly outweigh the benefits.

O. IMPLICATIONS OF ADVERSE EFFECTS AND PUBLIC INTEREST

224. For the reasons described in this section, and as specified in section Q (Recommendations), Squamish submit that the Project is likely to cause significant adverse environmental effects that cannot be justified pursuant to CEAA 2012 s. 29(1)(a). Nor is the Project in the public interest pursuant to s. 52(1)(a) of the NEB Act.

P. THE BOARD CANNOT RECOMMEND THAT THE PROJECT IS IN THE PUBLIC INTEREST AS CANADA HAS NOT FULFILLED ITS OBLIGATIONS TO CONSULT THE NATION

1. Decision of the Federal Court of Appeal

225. There is no dispute that Canada must consult and accommodate Squamish with respect to the Project. Canada accepts that the duty is at the high end of the spectrum.181

226. As noted above, the FCA agreed with Squamish that Canada’s prior consultation efforts on the Project were “unacceptably flawed and fell short of the standard prescribed by the jurisprudence of the Supreme Court.”182

227. The FCA held that Canada’s efforts were deficient in a number of respects including the following:

180 A97422-2 Argument-in-Chief of Trans Mountain (A6R2D0), p. 1 181 Tsleil-Waututh Nation, para. 758; 2016 CAR (A6J6R4), Appendix C.4 Squamish Nation, p. 3 182 Tsleil-Waututh Nation, para. 557

63 (a) Canada failed to engage meaningfully. Canada was required to do more than receive and understand the concerns of the Indigenous applicants. Canada was required to engage in a considered, meaningful two-way dialogue, including about the Board’s findings.183

(b) The Crown consultation team implemented their mandate essentially as note-takers. Canada’s representatives limited their mandate to listening to and recording the concerns of the Indigenous applicants and then transmitting those concerns to the decision-makers.184

(c) Missing was someone representing Canada who could engage interactively. Someone with the confidence of Cabinet who could discuss, at least in principle, required accommodation measures, possible flaws in the Board’s process, findings and recommendations and how those flaws could be addressed.185

(d) Canada was unwilling to meaningfully discuss and consider possible flaws in the Board’s findings and recommendations.186 Canada was unwilling to depart from the Board’s findings and recommended conditions so as to genuinely understand the concerns of the Indigenous applicants and then consider and respond to those concerns in a genuine and adequate way.187

(e) Canada was of the erroneous view that it was unable to impose additional conditions on Trans Mountain.188

(f) Canada disclosed too late its view that the Project did not have a high level of impact on the established and asserted rights of the Indigenous applicants and failed to provide more time to respond so that all Indigenous groups could contribute detailed comments on the second draft of the Crown Consultation Report.189

183 Tsleil-Waututh Nation, paras. 558, 574 184 Tsleil-Waututh Nation, paras. 562, 589-601 185 Tsleil-Waututh Nation, para. 759 186 Tsleil-Waututh Nation, para. 760 187 Tsleil-Waututh Nation, para. 560, 627-628 188 Tsleil-Waututh Nation, para. 560 189 Tsleil-Waututh Nation, paras. 561, 761

64 (g) Canada did not respond meaningfully to Squamish’s concern that more needed to be known before the Project was approved.190

228. Contrary to the argument of Trans Mountain (A6R2D0, at p. 9), the FCA did not determine that the Board fulfilled its consultation obligations, but merely that the design of the process was acceptable. In commenting that “the Board’s process was adequate for fulfilling its consultation obligations”, the Justice Dawson cautioned that “at this point I am only addressing submissions with respect to the adequacy of the design of the consultation process, the Board was required to provide a process that was impartial and fair and in accordance with its statutory framework and the Constitution.”191 The Court went on to conclude that the execution of the consultation process was inadequate.192

2. Substantive Consultation with the Nation on the Project has not begun

229. Canada has yet to take steps to remediate the specific deficiencies in the consultation process as found by the FCA.

230. Canada has asserted in its Direct Evidence before the Board that it plans to reinitiate Phase III consultations.193 The evidence of Squamish is that the process has not begun and as such has not addressed the Nation’s outstanding concerns as found by the FCA.194

231. The consultation process thus far with the Nation has consisted of only an exchange of a handful of letters, with the Nation raising issues with the limited scope of the Reconsideration, the constrained timeline under which to complete the Reconsideration, and the continued reliance by Canada on the incorrect and unreasonable 2016 CAR. Canada for its part has only provided generic template letters that do not respond to the Nation’s specific concerns.195

190 Tsleil-Waututh Nation, para. 662-668 191 Tsleil-Waututh Nation, para. 523, 531 192 Tsleil-Waututh Nation, para. 6 193 Federal Authorities Direct Evidence (A6J6L9), pg. 79 194 Squamish Nation Direct Evidence (A6L6J5), paras. 58, 64-65; Tsleil-Waututh Nation, paras. 602-603, 618-622, 627-628 195 Squamish Nation Direct Evidence (A6L6J5), paras. 58-70; Annex B, C, D, and E

65 232. The one meeting that Canada had with the Nation on October 31, 2018 was introductory and did not address substantive issues. In that meeting the Nation asked for Canada to provide a response on a number of preliminary concerns with the re-initiated Phase III consultation process. The Nation is still waiting for a response to these concerns.196

233. Canada has allowed the Reconsideration to proceed to a close despite Squamish raising that the constrained timeline set by Cabinet of 155 days did not provide Squamish with a meaningful opportunity to present its case to the Board.

234. Canada has further yet to provide detailed information on the specific steps that it proposes to take to discharge the duty to consult and accommodate Squamish and has only provided high level guidance and assurances that it will meet its obligations. These promises of future action by Canada are not sufficient for the Board to rely on, particularly given:

(a) Canada’s previous failure to fulfill those promises in accordance with the standard set by the Supreme Court of Canada. (The FCA held that it was not Canada’s design of the consultation process that fell short, but Canada’s execution.);197

(b) The very serious issues outlined in the previous sections of this submission and the evidence described above that supports those concerns.

235. By Canada’s own evidence, issues of consultation and accommodation are beyond the scope of this Reconsideration. Despite recognizing that the Reconsideration hearing is operating within the broader context of the reinitiated Phase III consultation process, in response to the Nation’s information requests asking for details on how Canada will address the Nation’s specific concerns about the impacts of the Project to the Nation’s rights in Phase III consultation, Canada took the view that requests about consultation and accommodation were beyond the scope of the Board’s process noting for the majority of the requests that “[t]his request is not related to one or more of the issues in the Board’s List of Issues for the Reconsideration Hearing” and only

196 Squamish Nation Direct Evidence (A6L6J5), paras. 60-61; Annex B 197 Tsleil-Waututh Nation, paras. 557, 753, 759

66 providing generic information. The Board apparently agreed with Canada’s approach as it denied all of Squamish’s requests for adequate responses in its motion to compel.198

236. Critically, Canada has failed to engage in a dialogue about the asserted flaws in the Board’s original Report, or any substantive dialogue at all, relevant to Squamish, despite the FCA finding that the “critical importance of the Board’s findings to the Indigenous applicants mandated meaningful dialogue about those findings”. Those findings include that:

(a) Project-related pipeline, facility and Westridge Marine Terminal construction and operation, and marine shipping activities were likely to have low-to-moderate magnitude environmental effects on terrestrial, aquatic and marine species harvested by Indigenous groups as a whole (NEB Report, pages 204, 221 to 224 and 362);

(b) Construction of the Westridge Marine Terminal, the pipeline and associated facilities were likely to cause short-term temporary disruptions to Indigenous community members accessing traditional hunting, trapping and plant gathering sites (NEB Report, page 279); and,

(c) Project-related marine shipping activities were likely to cause temporary disruptions to activities or access to sites during the period of time Project-related tankers were in transit (NEB Report, page 362).199

237. Nor has Canada considered or consulted Squamish on the new evidence that Squamish has submitted in this Reconsideration proceeding or discussed with Squamish the views and concerns that arise from this evidence.

238. The Board does not have the ability to overrule the FCA’s findings on the inadequacies of consultation, and cannot make a recommendation that the Project is in the public interest until these inadequacies have been addressed. That has yet to occur.

198 E.g.: Canada Response to Squamish (A6Q5W1) IR No. 1(a), (b), (c), (j), (o), (p), (q), (r), (s); A97280- 1 NEB Ruling No 28 – All Parties – Motions to compel full and adequate responses to information requests (“Ruling No 28”) (A6Q9V5), Appendix 1, pp. 5-9 199 Tsleil-Waututh Nation, paras. 572-574, 627-628

67 3. The Reconsideration hearing has not provided for Meaningful Engagement

239. Canada has indicated that it is relying on the Board’s process to the extent possible to discharge the duty consult the Nation, which may be permissible to some extent, but “subject always to the Crown’s overriding duty to consider [the] adequacy [of that process] in any particular situation.”200

240. Meaningful consultation is not simply a process of exchanging information. Where, as in this case, deep consultation is required, a dialogue must ensue and the dialogue should lead to a demonstrably serious consideration of accommodation. The Crown must be prepared to make changes to its proposed actions based on information and insight obtained through consultation.201

241. Procedurally, the Reconsideration process was not conducive to the interactive engagement required of Crown-Aboriginal consultation. Even as an information-gathering tool it has been fundamentally lacking, and significantly hampered by the timeline set by Cabinet. The Board’s process has not elicited the Squamish-specific information on Squamish’s rights and impacts to those rights required to discharge the duty to consult. The Board’s process has further not addressed Squamish’s outstanding concerns with the Project, resulted in a meaningful two- way dialogue on those concerns, or developed accommodation measures to address those concerns. Canada is obliged to consult on these issues.

242. The specific deficiencies in the Board’s process that make it inappropriate to rely on the process, even in part, to discharge Canada’s constitutional obligations are further set out below.

(a) Failure to consult on the Scope of the Reconsideration and to provide the Nation with all necessary information

243. Canada did not consult with the Nation on the scope of the Reconsideration prior to issuing the OIC. The topics that Canada unilaterally directed the Board to consider in the Reconsideration are considerably narrower than those topics on which Canada is obligated to consult the Nation.

200 Haida, paras. 42, 48; Gitxaala, paras. 176, 179-181; Clyde River v. Petroleum Geo-Services, 2017 SCC 40, para. 22 201 Tsleil-Waututh Nation, para. 564; Mikisew, para. 54; Clyde River, para. 49

68 244. The outstanding issues of the Nation with respect to the Project, which the FCA found that the Nation was owed a meaningful response, are not limited to Project-related marine shipping. Yet, Canada did not include those topics as issues to be revisited and reassessed in the Reconsideration before the Board. The Board limited the scope of the Reconsideration in the List of Issues to “the potential impacts of Project-related marine shipping on Indigenous interests.”202

245. In the prior Phase III consultation process, the Nation highlighted information gaps and errors in the prior NEB assessment and that it required to be filled in or corrected in order for Canada to discharge its consultation obligations to the Nation, including those relating to the specific risks posed by the Burnaby Terminal and the Westridge Marine Terminal, emergency response plans, alternative means of carrying out the Project and other proposed mitigation measures for the Westridge Marine Terminal and Burnaby Terminal. This information was necessary to assess the impacts of the Project on Squamish’s Aboriginal rights and title.

246. In the information request process, the Nation asked Canada how the issues of concern of the Nation that do not fit within the limited scope of the List of Issues for the Reconsideration will be assessed and whether Canada will institute a separate process to undertake technical assessment of these issues. Canada indicated that it will only re-engage on these issues in Phase III. Canada failed to indicate whether further technical assessment of these issues will take place prior to Project approval.203 The Nation brought a motion asking Canada for a full and adequate response to this request, but the Board denied the motion.204 Further even with respect to the issues of concern of the Nation that do fall within the List of Issues, Squamish was unable to obtain the information it considered necessary to understand the potential impacts of the Project on its rights, title and reserve interests.205

202 Hearing Order MH-052-2018, Appendix 1 203 A97191-2 2019-01-10 Reply to Motion to Compel Adequate Responses to Information Requests of Squamish Nation (“Squamish Nation Reply to Motion to Compel”) (A6Q8V2), response to IR No. 1(o) (PDF pp. 10-11) 204 NEB Ruling No. 28 (A6Q9V5), IR No. 1(o), p. 6 205 Squamish Nation Reply to Motion to Compel (A6Q8V2), e.g. IR No. 1(d) (PDF pp. 3-4); NEB Ruling No. 28 (A6Q9V5), IR No. 1(d), p. 5

69 247. As there was no right of cross-examination, information requests were the only way to elicit information about the Project, its potential impacts and the federal Crown’s assessment of those impacts from either Trans Mountain or the participating Crown departments.206

248. For example, Squamish once again sought information to better understand the specific risks that a diluted bitumen spill would pose in the Nation’s Territory and whether a spill could be cleaned-up. The issue was pressed by Environment Canada (now called Environment and Climate Change Canada (“ECCC”)), as well as Squamish (which filed its own evidence regarding the impact of diluted bitumen on salmon) in the original proceeding. In its closing submissions, ECCC argued that the provision of this additional information on this matter should be made a condition of any NEB recommendation to approve the Project207, but the Board declined to impose such a condition. In the Reconsideration hearing, the Nation again asked for information on the behaviour of the specific diluted bitumen blends to be transported by the Project in the Nation’s waters in Burrard Inlet and the Fraser River Estuary, and the equipment available to clean up a spill if it submerges or sinks, but was unable to obtain that information.208

249. Squamish further asked again for Trans Mountain’s emergency response plans and emergency management program documents with respect to accidents and malfunctions in the Nation’s Territory for the Project, but Trans Mountain declined to provide them – only providing the documents for the existing facilities that have yet to be updated for the expansion.209

250. The duty of consultation requires the Crown to provide the First Nation with “all necessary information” so that the First Nation has an opportunity to express its interests and concerns. The Board’s Reconsideration process has left much information outstanding that is necessary to understand the unique impacts of the Project on Squamish’s rights, title and reserve interests. It is incumbent upon Canada to act to either provide the outstanding information or explain to Squamish why it is considered unnecessary. Canada has done neither.210

206 Hearing Order MH-052-2018 207 C131-8-2 Environment and Climate Change Canada Written Argument-in-Chief (A4X3X1), pp. 113-118 208 Squamish Nation Reply to Motion to Compel (A6Q8V2), IR No. 2(a)-(f) (PDF pp. 19-23) 209 Squamish Nation Reply to Motion to Compel (A6Q8V2), IR (1)(a), 1(b), 1(c) (PDF pp. 1-3) 210 Mikisew, paras. 54-55, 64; Gitxaala, para. 235

70 (b) Failure to provide Strength of Claim Information

251. The content of the duty to consult varies from case-to-case depending on the strength of the asserted claim to Aboriginal rights or title and the degree of potential impact on those rights. Where a claim is strong and the potential for adverse impact is significant, consultation must be at the deeper end of the consultation spectrum. Weaker claims with less potential impact, require less. Consequently, the Crown’s assessment of the First Nation’s strength of claim is a critical aspect of the consultation process and informs the degree to which the Crown must consult and potentially accommodate the right.211

252. In this case, Canada has acknowledged that it owed Squamish a duty to consult at the high or deeper end of the consultation spectrum. This accords with the available evidence of Squamish’s Aboriginal rights and title interests, the location of the Project within Squamish Territory, and the almost direct proximity of major elements of the Project (including the Westridge Terminal and the shipping route) to Squamish reserves.212 There is a strong claim to Aboriginal rights and title with very severe potential adverse impacts on Squamish Aboriginal rights and title, and their established reserve interests, particularly in the event of a spill.

253. However, while the Crown concluded that consultation with Squamish should be at the deeper end of the spectrum, it assessed the strength of Squamish’s case for Aboriginal rights to be “weak to moderate” in the area that spans the Westridge Terminal to the Fraser River and for Aboriginal title to be a “weak” claim. Squamish disputed these conclusions before the FCA and continues to dispute these conclusions and submits that they are incorrect and unreasonable. However, since Canada failed or refused to provide Squamish with the information on which this assessment is based, Squamish has been denied the opportunity to properly dispute this assessment before the Board.

211 Gitxaala, paras. 225 and 288-292; Haida, paras. 42-45 212 Squamish Traditional Use and Occupancy Study – Part 1 (A4L7E3), pp. 80-84, 91-98; Part 2 (A4L7E4), Map 1; C319-11-1-NEB Hearing Transcript – Squamish Nation Corrections (A4F2C8), paras. 5439-5440, 5505; A96243-1 Squamish Oral Hearing Evidence – Reconsideration (A6L2F4), para. 3149, 3158-3164; Squamish Nation Direct Evidence (A6L6J5), paras. 12-16, 18, 19, 36, 47, 48, 54

71 254. In Gitxaala, this Court recognized the importance that a strength of claim assessment plays in establishing the parameters of consultation and, thus, found that the Crown must share and discuss the factual information behind its assessment with the First Nation:

It is to be remembered that the strength of claim plays an important role in the nature and content of the duty to consult. Canada must disclose information on this and discuss it with affected First Nations. On this, Canada fell short.213 (emphasis added)

255. In this case, Squamish specifically sought from Canada (through IR Nos. 1(d) and 1(e)) “a list of all materials that were consulted in developing the strength of claim assessment and copies of the materials on which that assessment is based.” Canada declined to say, noting only that “the 2016 Crown Consultation and Accommodation Report Appendix for Squamish …provides the results of a preliminary strength of claim assessment”.214

256. The 2016 CAR Appendix for Squamish only provides the conclusions of Canada’s strength of claim assessment for Squamish, but does not provide the assessment itself or the information on which it was based. Nor does the 2016 CAR consider any of the evidence of Squamish people or enthographic experts submitted in the prior NEB process. Despite Crown representations that the prior process would contribute to consultation the Crown ignored the evidence of Squamish representatives such as Paitsmauk (see para. 26 above) and anthropologist Richard Inglis. Instead, the Crown relied on an outdated and incomplete report that the Crown had in its possession from an earlier matter.

257. It is not sufficient for Canada to provide a statement that merely identifies its conclusion on strength of claim without also providing the information on which that conclusion was based. Nor is it sufficient to provide that statement without engagement with the First Nation. As the FCA stated in Gitxaala:

…affected First Nations were entitled to a meaningful dialogue about the strength of their claim. They were entitled to know Canada's information and views concerning the content and strength of their claims so they would know and would be able to discuss with Canada what was in play in the consultations, the subjects on which Canada might have to accommodate, and the extent to which Canada might have to accommodate. Canada's failure to be candid on this point, particularly in light of the initial commitments made in the letter of the Minister of the

213 Gitxaala, para. 225 214 Squamish Nation Reply to Motion to Compel (A6Q8V2), IR No. 1(e) (PDF p. 4)

72 Environment dated April18, 2012 (discussed at paragraphs 220 and 292, above), was legally unacceptable. Canada's failure frustrated the sort of genuine dialogue the duty to consult is meant to foster.215

258. The information in the 2016 CAR falls short of Canada’s consultation obligation and frustrated the opportunity for substantive or fruitful dialogue before the Board. Strength of claim is a threshold question in consultation and if the Crown is unwilling to share the information it has and is relying upon in its strength of claim determination and do so in a timely way, a meaningful process cannot get off the ground.

(c) Failure to provide an Impact Assessment specific to the Nation’s Rights

259. The Crown is obliged to inform itself of the impact the proposed project will have on an affected First Nation, and, if appropriate in the circumstances, communicate its findings to the First Nation and attempt to substantially address the concerns of the First Nation. When Crown conduct may adversely affect multiple First Nations, the rights and circumstances for each First Nation must be uniquely addressed.216

260. The FCA mandated in Gitxaala (and affirmed in Tsleil-Waututh Nation) that “where the Crown knows, or ought to know, that its conduct may adversely affect the Indigenous right or title of more than one First Nation, each First Nation is entitled to consultation based upon the unique facts and circumstances pertinent to it.” Moreover, Clyde River made clear that an assessment of effects to the environment generally is not an adequate substitute for an assessment of impacts to specific rights.217

261. The FCA emphasized in Tsleil-Waututh Nation that the rights themselves must be the focus of the consultative inquiry and subsequent development of mitigation measures (at para. 504):

Consultation must focus on rights. In Clyde River, the Board had concluded that significant environmental effects to marine mammals were not likely and effects on traditional resource use could be addressed through mitigation measures. The Supreme Court held that the Board’s inquiry was misdirected for the purpose of consultation. The Board was required to focus on the

215 Gitxaala, para. 309 216 Tsleil-Waututh Nation, para. 503; Mikisew, para. 55 217 Tsleil-Waututh Nation, para. 506; Gitxaala, para. 236; Clyde River, para. 45

73 Inuit’s treaty rights; the “consultative inquiry is not properly into environmental effects per se. Rather, it inquires into the impact on the right” (emphasis in original) (Clyde River, paragraph 45). Mitigation measures must provide a reasonable assurance that constitutionally protected rights were considered as rights in themselves—not just as an afterthought to the assessment of environmental concerns (Clyde River, paragraph 51).

262. Squamish made extensive comments in the previous Phase III consultation and submissions before the FCA on the inaccuracies and inadequacies of the conclusions in the 2016 CAR, particularly with respect to strength of claim and the determination that impacts to the Nation’s rights “were up to minor” (that Squamish objected to as incorrect and unreasonable). The defects highlighted by the Nation in the 2016 CAR have not been remedied. It is not in keeping with the honour of the Crown for Canada to continue to rely on this flawed assessment before the Board, even on a preliminary basis.

263. The FCA found that the consultation as detailed in the 2016 CAR fell well below the required standard and that Canada’s late disclosure of the 2016 CAR did not provide time for First Nations to provide feedback as follows:

[761] These three systemic limitations were then exacerbated by Canada’s late disclosure of its assessment that the Project did not have a high level of impact on the exercise of the applicants’ “Aboriginal Interests” and its related failure to provide more time to respond so that all Indigenous groups could contribute detailed comments on the second draft of the Crown Consultation Report.

[762] Canada is not to be held to a standard of perfection in fulfilling its duty to consult. However, the flaws discussed above thwarted meaningful, two-way dialogue. The result was an unreasonable consultation process that fell well short of the required mark.218

264. In response to the correspondence from Canada on November 9, 2018 asking again for comments on the 2016 CAR, on November 20, 2018, the Nation wrote the following:

Asking the Nation to once again comment on a document that we have made clear to Canada does not accurately represent our rights, impacts to those rights from the Project and our outstanding concerns with the Project, is not a meaningful attempt at engagement and ignores the time and effort that Squamish put into the initial round of consultation with Canada that was found to fall well short of the required standard.

We, therefore, ask that Canada review our prior submissions before the NEB, during the initial Phase 3 consultation with Canada and before the Federal Court of Appeal, and provide a response

218 Tsleil-Waututh Nation, paras. 761-762

74 to the Nation on how Canada plans to address the concerns outlined in those submissions in the reinitiated Phase 3 consultation process.219

265. Further, Canada in response to an information request of Squamish has indicated that it will be updating the 2016 CAR, but that has yet to occur. In the absence of an updated report developed in partnership with the Nation that addresses the flaws highlighted by Squamish and recognized by the FCA, the Board cannot rely on the 2016 CAR. Particularly, the Board cannot rely on the 2016 CAR for the purposes as advocated by Canada in its Written Argument in Chief (A6R2C7, pg. 6) – “[t]o ensure that the NEB was made aware of the Indigenous interests and concerns related to the Project…as they were understood by the Crown.”

266. Trans Mountain has not provided an assessment of the Project impacts on a specific basis for each First Nation, and has instead provided a generic assessment for all Indigenous groups.220

267. This is a critical aspect of consultation process that is missing. The Nation’s assessment is that the Project poses severe potential adverse impacts on Squamish Aboriginal rights and title, and their established reserve interests, particularly in the event of a spill.

(d) Failure of Accommodation

268. Given there has been no assessment by the Crown of the impacts to the Nation’s unique rights, the consultation process has not proceeded to a point where the sufficiency of proposed accommodation measures can be considered. As made clear by the Supreme Court of Canada in Clyde River, mitigation measures must provide a reasonable assurance that constitutionally protected rights were considered as rights in themselves — not just as an afterthought to the assessment of environmental concerns (Clyde River, para. 51).

269. The broad initiatives that Canada highlights as “responsive” to concerns raised by Squamish, including the West Coast Energy Infrastructure Initiative, the Indigenous Monitoring and Advisory Committee, and the OPP, along with the conditions and recommendations for the

219 Squamish Nation Direct Evidence (A6L6J5), Annex D 220 B18-29 – V8A 4.2.12.2 TO T5.2.2 Mar Trans Assess (A3S4Y3), PDF p. 135-144

75 Project, are not directed at mitigating impacts to the Nation’s rights.221 Squamish’s evidence is that these initiatives do not address impacts Nation’s rights, or are at such an early stage of development that they cannot be considered mitigation measures for Project impacts to the Nation.222

270. Squamish specifically advised Canada in the prior Phase III that with respect to the Indigenous Monitoring and Advisory Committee that it does not want to be relegated to a clean- up crew in its territory. Further, as highlighted below with respect to the assessment under CEAA 2012, the OPP is at such a nascent stage of development it does not provide the necessary details to accommodate the Nation – it consists of nothing more than a plan to make a plan.

(e) The Board cannot rely on Trans Mountain to Satisfy the Crown’s Duty to Consult

271. The duty to consult and accommodate rests with the Crown. The Crown may delegate procedural aspects of that duty to a project proponent, but the ultimate legal responsibility for fulfilling the duty rests with the Crown alone. The “honour of the Crown cannot be delegated”.223

272. The Nation specifically asked Canada in the Reconsideration whether it had delegated procedural aspects of consultation to Trans Mountain. Canada responded stating that “the legal duty to consult rests with the Crown as per s. 35 of the Constitution Act, 1982” and that “[t]he Crown has not delegated the procedural aspects of its duty to consult to the Project proponent.” Canada further stated that even though “the NEB filing manual provides information to the proponent on the requirement to engage with potentially affected Indigenous communities, governments and nations”, “[t]his does not constitute delegation of the duty to consult.” 224

273. As a practical matter, First Nations need to know when they are or not engaged in discussions that amount to consultation for the purposes of the duty to consult. This is part of the

221 A97421-2 Federal Authorities Argument in Chief (“Canada Written Argument in Chief”) (A6R2C7), pp. 7-8 222 Squamish Nation Direct Evidence (A6L6J5), paras. 69-70; “Nuka Reconsideration Report” (A6L6F5), para. 12 223 Haida, paras. 51-53 224 Squamish Nation Reply to Motion to Compel (A6Q8V2), IR No. 1(w) (PDF pp. 15-16)

76 Crown’s positive obligation to inform First Nations and to provide a transparent and reasonable process. Professor Dwight G. Newman in The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich Publishing, 2009) noted at p. 36:

One danger of having different industry stakeholders involved in carrying out consultations is that it may become difficult for an Aboriginal community to identify when it is or is not engaged in discussions that amount to consultation for the purposes of the duty to consult. Various industry representatives may engage in discussions that might later be portrayed as part of a consultation process. This worry can be overcome by the government either carrying out all consultation itself or delegating its consultation roles quite explicitly where it does so.225

274. Consistent with the Crown’s responses to information requests of the Nation, the Crown is entitled to rely on the opportunities for engagement in the NEB process in attempting to satisfy the duty to consult (in whole or in part), and the Board may scrutinize that reliance to determine whether, in substance, it provided for an appropriate level of meaningful consultation. As above, the Board process in this case did not provide the required level of consultation, and that the prerequisites for beginning a meaningful consultation process have yet to be satisfied.226

275. However, this is not to say that Canada can rely on the NEB process as a gateway to rely on engagements generally between Trans Mountain and First Nations to fulfill (even in part) the consultation obligations, this is not honourable conduct on the part of the Crown, given the express assurance that procedural aspects of consultation have not been delegated. In any event, none of Trans Mountain’s purported attempts at engagement have been directed at Squamish’s rights, or at understanding the impacts of the Project to the Nation’s rights.

4. Consequences of Canada’s Failure to Fulfill the Duty to Consult and Accommodate

276. In the result, the Board does not have the information before it to determine that Canada’s obligations to consult and accommodate the Nation have been fulfilled. It is not sufficient that Canada merely asserts that it will comply with the FCA decision – the Board needs evidence before it that Canada has fulfilled its obligations before recommending that the Project is in the public interest.

225 See also Mikisew, paras. 54-55, 64; Clyde River, para. 46; Hupacasath First Nation v. British Columbia (Minister of Forests), 2008 BCSC 1505, para. 147; Hupacasath First Nation v. British Columbia (Minister of Forests), 2005 BCSC 1712, paras. 259-262, 272 226 Haida, paras. 42, 53

77

TABLE OF AUTHORITIES

Cases

1. Alberta Wilderness Association v. Cardinal River Coals, [1999] 3 F.C. 425 (FCTD)

2. Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817

3. Canada (A.G.) v. Canadian Pacific Ltd., 2002 BCCA 478

4. Clyde River v. Petroleum Geo-Services, 2017 SCC 40

5. Gitxaala Nation v. Canada, 2016 FCA 187

6. Haida Nation v. British Columbia, 2004 SCC 73

7. Hupacasath First Nation v. British Columbia (Minister of Forests), 2008 BCSC 1505

8. Hupacasath First Nation v. British Columbia (Minister of Forests), 2005 BCSC 1712

9. Pembina Institute for Appropriate Development v. Canada (Attorney General), 2008 FC 302

10. Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69

11. R. v. Adams, [1996] 3 S.C.R. 101

12. Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43

13. Tsleil-Waututh Nation v. Canada (Attorney-General), 2018 FCA 153

Legislation

14. Canadian Environmental Assessment Act, 2012, S.C. 2012, c. 19, s. 52, ss. 5, 19, 29, 31

15. Constitution Act, 1982, Enacted as Schedule B to the Canada Act 1982, 1982, c. 11 (U.K.), s. 35

16. National Energy Board Act, R.S.C. 1985, c. N-7, ss. 52, 53, 54

17. Indian Act, R.S.C. 1985, c. I-5

18. Species at Risk Act, S.C. 2002, c. 29, s.79

79 Secondary Sources

19. Canadian Environmental Assessment Agency, “Addressing ‘Purpose of’ and ‘Alternate Means’ under the Canadian Environmental Assessment Act, 2012” (March 2015)

20. Dwight G. Newman in The Duty to Consult: New Relationships with Aboriginal Peoples (Saskatoon: Purich Publishing, 2009)

21. Sara Blake, Administrative Law in Canada, 5th ed. (Toronto: LexisNexis, 2011)

80