Pacheedaht First Nation

February 8, 2018

VIA EMAIL - [email protected]

Review Panel, Roberts Bank Terminal 2 Project c/o Canadian Environmental Assessment Agency 22nd Floor, 160 Elgin Street Ottawa, ON K1A 0H3

Attention: Cindy Parker, Panel Manager

Dear Sirs/Mesdames:

Re: Roberts Bank Terminal 2 Project Pacheedaht First Nation Comments on Sufficiency of Information

On behalf of the Pacheedaht First Nation (Pacheedaht), I am writing to provide our comments on the sufficiency of the information before the Panel for the Roberts Bank Terminal 2 Project (the Project).

Sufficiency of Information

In our view, the Panel still does not have enough information to proceed to a public hearing for the Project.

Overall, our concern with the information provided by the Vancouver Fraser Port Authority (the Port) lies with the fact that the assessment of potential impacts to Pacheedaht’s ability to exercise our Aboriginal rights and title as a result of the marine shipping remains incomplete. Pacheedaht has identified a number of specific concerns relating to marine shipping issues from the Project, including through Pacheedaht’s detailed comments on the completeness of the Marine Shipping Addendum (MSA)1, comments on the EIS2, and the Traditional Use and Occupancy Study.3 The responses provided by the Port are very general in nature, largely point back to existing information (such as the MSA), and are not responsive to the specific concerns being raised by Pacheedaht.

In order to assist the Panel in identifying the information needed to proceed to a hearing, particularly in terms of mitigation measures for marine shipping, we are taking this opportunity to provide some clarity around what information and measures are needed to properly assess and address impacts to Pacheedaht from the marine shipping.

Potential impacts to Pacheedaht from marine shipping

Pacheedaht has serious concerns with the Project as it will mean increased vessel traffic through Pacheedaht’s marine Territory, including Swiftsure Bank, and will lead to interference with the exercise of Pacheedaht’s Aboriginal rights and title.

By way of background, the Panel will be aware that the international shipping lanes transit through the entirety of Pacheedaht’s marine Territory, crossing over many important fishing grounds including the hereditarily-managed

1 Document #384. 2 Document #672. 3 Document #1150.

Pacheedaht First Nation … 2

Swiftsure Bank. Swiftsure Bank is one of the most important marine areas in Pacheedaht’s Territory, having been managed and harvested for many centuries. Swiftsure is extremely rich with many different varieties of fish that are harvested by Pacheedaht, including salmon, halibut, and several varieties of rockfish. It is an important nursery and holding area for many marine mammals and fish stocks and is a very special place to Pacheedaht people.

Pacheedaht have Aboriginal title and Aboriginal rights to fish the entire Swiftsure Bank, part of which is closed to commercial and recreational fisheries. The ability to safely and regularly access Swiftsure Bank is essential for the exercise of Pacheedaht’s Aboriginal rights and title, including for cultural, governance, spiritual, subsistence, trade and economic purposes (Pacheedaht’s Rights and Title).

The outbound shipping lane in the Strait of Juan de Fuca was moved further north in about 2005, and now goes through Swiftsure Bank. This has created serious challenges for Pacheedaht members to harvest there. With the anticipated increase in vessel traffic through the Strait of Juan de Fuca, including from this Project, Pacheedaht is becoming increasingly concerned about availability and abundance of resources, marine safety and emergency response in its Territory. Currently, Pacheedaht members must take extraordinary measures (including where available the use of radar, exercising extreme vigilance, and avoiding fishing in foggy conditions), to try to address the heightened safety risks associated with fishing at Swiftsure Bank.

The J-Buoy at the mouth of the Strait of Juan de Fuca has been identified as a high risk area for a marine incident within the Strait of Juan de Fuca. Currently, there is no Canadian Coast Guard presence in the Port Renfrew area, and inadequate capacity to properly respond to a marine emergency, including vessel collisions or malfunctions. The location of the shipping lanes through Swiftsure Bank also poses serious risks to Pacheedaht harvesters, and without the necessary mitigation, those risks will increase significantly if the Project is approved, due to the substantial increase in vessels traversing the waters of Pacheedaht’s Territory.

Due to the seriousness of the potential impacts to Pacheedaht’s Rights and Title from the Project, the Panel needs to be able to consider the adequacy of marine safety measures and emergency response capacity within Pacheedaht Territory as part of its review of the Project. However, this information has not been provided by the Port. In response to the specific information and concerns raised by Pacheedaht in relation to marine shipping issues from the Project, the responses provided by the Port are insufficient. From our review of the Project application and IR responses, the Port’s response to Pacheedaht’s concerns relating to marine shipping appears to be as follows:

Considering the conclusions of the Current Use assessment, marine shipping associated with the Project is expected to result in a minor incremental adverse impact on the ability of Indigenous groups to exercise Aboriginal or treaty rights within the marine shipping area without mitigation. This minor impact is expected because of the potential overlap of asserted or established rights-based activities with the incremental increase in Project-associated container ship pass-bys.

Suggested mitigation includes development of a marine shipping activities communication plan and consultation with affected Indigenous groups concerning the outbound international shipping lane location.

These mitigation measures for addressing potential incremental effect on Current Use are expected to also be effected at addressing the potential incremental impact to the exercise of Aboriginal and treaty rights.4 [emphasis added]

The exact same response is found ten times throughout the Pacheedaht-specific response table at Appendix 10-C in relation to a wide range of marine shipping related concerns raised by Pacheedaht, including:

4 Port of Vancouver response to Information Request Package 10 from the Review Panel for the Roberts Bank Terminal 2 Project Environmental Assessment at (“Package 10 Response”) at PDF pages 1361.

Pacheedaht First Nation … 3

• Request for a complete assessment of potential impacts from ship wake;5

• Concerns about damage to intertidal and shoreline habitat;6

• Concerns about being able to safely carry out shoreline harvesting;7

• Concerns about economic impacts;8

• Request to collect additional information to inform the impact assessment;9

• Concerns about being able to safely harvest at Swiftsure Bank;10

• Concerns about damage to or loss of fishing gear;11

• Concerns about impacts to the intergenerational transfer of knowledge;12

• Request for a cumulative effects assessment in relation to Pacheedaht’s marine harvesting, fishing, and hunting;13

• Concerns about loss of access to marine resources;14 and

• Concerns about health impacts to Pacheedaht from loss of marine resources.15

The response is also not specific to Pacheedaht. The same response appears at Appendix 10-C in relation to concerns raised by thirteen different Indigenous groups.16

The generic and vague nature of the Port’s response raises concerns for Pacheedaht, as illustrated by the same response being provided in response to a wide variety of concerns and Indigenous groups. Pacheedaht does not agree that the potential impacts from marine shipping will be minor, and continues to be of the view that a conclusion about the scope of potential impacts cannot be reached until a complete assessment has been conducted of impacts to Pacheedaht’s Rights and Title from the Project.

We are also very concerned about the lack of information provided in relation to the Port’s proposed mitigation measures for addressing the impacts from marine shipping. These measures are not described at anywhere near a

5 Package 10 Response at PDF page 1361. 6 Package 10 Response at PDF page 1361. 7 Package 10 Response at PDF page 1361. 8 Package 10 Response at PDF page 1362. 9 Package 10 Response at PDF page 1363. 10 Package 10 Response at PDF page 1380. 11 Package 10 Response at PDF page 1380. 12 Package 10 Response at PDF page 1390. 13 Package 10 Response at PDF page 1390. 14 Package 10 Response at PDF page 1392-93. 15 Package 10 Response at PDF page 1396. 16 Stz’uminus (Package 10 Response at PDF page 440); (Package 10 Response at PDF page 527); (Package 10 Response at PDF page 618); Lake Cowichan First Nation (Package 10 Response at PDF page 689); Lyackson First Nation (Package 10 Response at PDF page 756); Tribe (Package 10 Response at PDF page 853); Métis Nation (Package 10 Response at PDF page 928); (Package 10 Response at PDF page 967); Pauquachin First Nation (Package 10 Response at PDF page 1082); Tseycum First Nation (Package 10 Response at PDF page 1198); Beecher Bay (Scia’new) First Nation (Package 10 Response at PDF page 1308); Esquimalt Nation (Package 10 Response at PDF page 1333); and Ditidaht First Nation (Package 10 Response at PDF page 1423).

Pacheedaht First Nation … 4 sufficient level of detail for the Panel to determine the degree to which they could offset the predicted impacts from marine shipping.

To assist the Port and the Panel, we are providing information on some of the measures that in our view are required in order to assess and address the impacts from marine shipping on Pacheedaht Rights and Title. We look forward to discussing these measures with the Port.

Special routing measures at Swiftsure Bank

As explained above, Pacheedaht has serious concerns about interference with its fishing activities created by the current location of the shipping lanes. In our view, in order to reduce impacts from the Project, special routing measures are needed to avoid Swiftsure Bank.

In its IR response set out above, the Port states that suggested mitigation includes “with affected Indigenous groups concerning the outbound international shipping lane location”. We have two related concerns with this statement.

First of all, it is not clear who the Port is proposing will consult on this issue or how or when this consultation will take place. More importantly, consultation with Pacheedaht will not be sufficient. Consent-based processes need to be followed given the severity of the impacts to Pacheedaht’s Rights and Title from the shipping lanes. As a result, Pacheedaht needs to be fully involved in decision-making around what protective measures are implemented, and where.

Secondly, it is also not clear what the proposed scope of engagement would be with other Indigenous groups in relation to the shipping lanes given that the concerns being raised in relation to Swiftsure Bank are specific to the Territories of Pacheedaht, Ditidaht and . We understand that Transport Canada is currently establishing a committee and workshop with Aboriginal groups to discuss the location of the shipping lanes and we question the appropriateness of expanding this discussion to groups other than those who have traditionally managed access to Swiftsure Bank, being the three sister nations of Pacheedaht, Ditidaht, and Makah.

Pacheedaht has been requesting a realignment of the shipping lanes in the Strait of Juan de Fuca for many years, including in the context of the Panel’s review of the Project. Pacheedaht must be an active partner in the decision- making process in relation to how changes to the shipping lanes are implemented, and must be fully engaged from the very beginning of the process. Any changes to the location of the shipping lanes needs to address not just impacts to species at risk, such as the Southern Resident Killer Whale (SRKW), but also Pacheedaht’s Rights and Title at Swiftsure Bank and elsewhere in Pacheedaht’s marine Territory.

The Port and Canada must work directly with Pacheedaht, in conjunction with the Ditidaht First Nation (Ditidaht), on any decisions to put special routing in place, including any changes to the traffic separation scheme, for shipping through the Strait of Juan de Fuca, including at Swiftsure Bank. Canada must also take steps to cooperate and collaborate with the United States on transboundary issues relating to the location of the shipping lanes, including potential voluntary and legislative processes to amend the traffic separation scheme. This engagement process needs to include the Makah Tribal Council (Makah), and should engage the International Maritime Organization (IMO) of which Pacheedaht is a member.

Special routing measures for the Swiftsure Bank area need to be put in place within a reasonable amount of time after any Project approval. This will give the parties, including Pacheedaht, sufficient time to adjust to the new routes and allow for an important trial period to make any necessary adjustments.

Lateral Displacement Trial

The Strait of Juan de Fuca lateral displacement trial is a voluntary initiative that asks vessels to move south when travelling through the Strait in order to reduce underwater noise in southern resident killer whale foraging habitat.

Pacheedaht First Nation … 5

Pacheedaht, Ditidaht and Makah must be part of the review of the Lateral Displacement Trial results, as well as: (a) the formulation of any recommendations coming out of this initiative including those expected to come out of the large vessel traffic working group; and (b) any decision- making process moving forward in relation to any special routing for shipping through the Strait of Juan de Fuca.

The Port and Canada must work directly with Pacheedaht, in conjunction with Ditidaht, on the review of the Lateral Displacement Trial and a meaningful opportunity must be created for Pacheedaht and Ditidaht to provide input on this issue going forward. This includes providing all relevant information in relation to the Lateral Displacement Trial, including the meeting notes from discussions between ECHO and Transport Canada, as well as DFO or related contractors, in relation to hydrophone data. Pacheedaht should also be provided with a seat on ECHO’s board to have ready access to information and to participate in planning related to the marine Territory.

Vessel speed

Pacheedaht supports the inclusion of a reduced vessel speed limit starting at J-Buoy and continuing for the full extent of Pacheedaht’s marine Territory. The appropriateness of this speed limit in terms of reducing impacts must be scientifically validated on an ongoing basis, including through the use of a hydrophone to be installed in Pacheedaht’s marine Territory. The installation and participation in hydrophone data collection must be carried out in conjunction with Pacheedaht on an ongoing basis.

Vessel Acceptance Standard

The Port needs to develop a set of Project-specific Vessel Acceptance Standard in collaboration with Pacheedaht. This document should contain information about adjustments to the shipping lanes around Swiftsure Bank, information about reduced vessel speeds through the Strait of Juan de Fuca, and other measures needed to improve vessel safety and reduce interference with fishing activities at Swiftsure Bank.

Marine Emergency Response Centre at Pacheedaht

The J-Buoy at the mouth of the Strait of Juan de Fuca has been identified as a high risk area for a marine incident within the Strait of Juan de Fuca. Currently, there is no Canadian Coast Guard presence in the Port Renfrew area, and there is inadequate capacity to properly respond to a marine emergency. A marine emergency response centre is needed at Port Renfrew in order to ensure timely emergency response to an incident in Pacheedaht’s marine Territory. Given Pacheedaht’s extensive knowledge of its marine environment and the stewardship role it plays in its marine waters, Pacheedaht members are best placed to respond to a marine emergency in their Territory. This request goes beyond the current initiative of the Canadian Coast Guard Search and Rescue station which has been dedicated, but not confirmed.

The marine emergency response centre must be staffed by fully trained Pacheedaht members and adequate funding needs to be provided to Pacheedaht to ensure there is capacity to adequately train emergency response workers and respond to emergencies. In establishing the emergency response centre, the necessary infrastructure and resources must be identified to ensure the centre provides adequate emergency response capacity. Steps must be taken to ensure that one of the Canadian Coast Guard’s new high powered tugs being leased for service on the west coast as part of their Emergency Towage Vessel (ETV) Program is located at Port Renfrew and operation of the tug must be co-managed with trained Pacheedaht members. In addition, the escort tugs used for Project-related vessels travelling through the Strait of Juan de Fuca should also be housed at Port Renfrew.

If a marine emergency response centre cannot reasonably be located at Port Renfrew, then additional resources must be dedicated to Pacheedaht in order to enhance the marine emergency response infrastructure, dedicated resources, and capacity including response time.

Pacheedaht understands that some integrated response planning for the Strait of Juan de Fuca is underway. However, this work does not include Nation-to-Nation engagement, insufficient information has been provided to Pacheedaht

Pacheedaht First Nation … 6 about this planning, and no funding has been provided to allow Pacheedaht to participate. We need to be fully engaged in this planning on a Nation-to-Nation basis, and for all response planning within Pacheedaht’s marine Territory.

It is critical that collaborative management with Pacheedaht occurs in Pacheedaht Territory. One model that can be looked to in order to devise an approach in Pacheedaht’s Territory is the Makah’s relationship and collaborative management processes with the US Coast Guard and other response organizations in Washington State, including in Neah Bay across from Pacheedaht Territory. Pacheedaht will be providing the Port and the Panel with further information about the Makah model shortly.

Additional radar sites in Pacheedaht Territory

Steps must be taken to ensure that new radar sites and other communication infrastructure to be installed on the west coast include Port Renfrew and other areas along the Strait of Juan de Fuca. The location of this infrastructure must be determined in full collaboration with Pacheedaht.

Southern Resident Killer Whale

In considering impacts to Pacheedaht’s Rights and Title from the marine shipping and how these impacts could be mitigated, the Panel will need to consider what other measures are being proposed for the Strait of Juan de Fuca that will have an impact on Pacheedaht. An example is the proposed measures for protecting SRKW and their habitat.

Critical habitat has now been established for SRKW in the entirety of Pacheedaht’s marine Territory, including at Swiftsure Bank. Pacheedaht is aware that the proposed management measures for SRKW critical habitat include, but are not limited to, salmon fishing or finfish closures.17

As a whaling people of the west coast, whales are very important to Pacheedaht and have special spiritual significance. Pacheedaht supports conditions that will help mitigate Project impacts to whales; however, there is a real risk that the measures being taken to protect the SRKW will result in further adverse impacts to Pacheedaht’s Rights and Title.

As a result, information about these measures and the potential they have to impact Pacheedaht’s Rights and Title must be included in Panel’s review of the Project.

Species at Risk

Pacheedaht is aware of other measures being considered for the Strait of Juan de Fuca in relation to the proposed emergency SARA listing of Thompson and Chilcotin Steelhead (Steelhead).18 These measures include 60-day rolling window closures for all commercial, recreational, and food, social, and ceremonial fisheries for salmon in certain areas. This includes the entirety of Pacheedaht’s marine Territory and would have a devastating impact on the exercise of Pacheedaht’s Rights and Title.

Again, the impacts from marine shipping related to the Project must be considered within the context of these potential measures, and the extreme restrictions already being placed on Pacheedaht’s Rights and Title at Swiftsure Bank and throughout the marine Territory.

17 “Southern Resident Killer Whale Imminent Threat Assessment” at page 20, accessed online at https://www.registrelep- sararegistry.gc.ca/virtual_sara/files/Ri-Ita-SthnResidentKillerWhale-v00-2018Jul-Eng.pdf on February 6, 2019. 18 Fisheries and Oceans Canada, “Thompson and Chilcotin Steelhead Trout: consultation on the potential emergency listing under the Species at Risk Act” accessed online at http://www.dfo-mpo.gc.ca/species-especes/consultations/steelheadtrout- saumonarcenciel/index-eng.html on February 5, 2019.

Pacheedaht First Nation … 7

Wave Environment – Open Water

We continue to have concerns about the effects of waves generated by marine shipping, including at Swiftsure Bank, and how the waves could impact fishing vessels.

In Pacheedaht’s previous comments on the sufficiency of the information before the Panel (dated October 5, 2018)19, we raised specific concerns with the Port’s response to IR7-22. In this IR, the Panel asked the Port to:

Assess the effects of waves generated by Project-associated vessels during calm conditions on small craft engaged in activities in open water at various points and various points and various distances from shore throughout the marine shipping area, including fishing activities in the vicinity of Swiftsure Bank.

Pacheedaht explained how this response is insufficient. The answer being provided is essentially that because wave activity can at times be rough at Swiftsure Bank, some more waves will not make a difference to the operators of small fishing vessels using the area. This fails to take into account that wave conditions in the Juan de Fuca Strait are not fixed; there can be periods of relative calm. Pacheedaht’s harvesters can be out on Swiftsure Bank during these times and if they are suddenly struck by vessel-related wake while focused on their fishing activities, their safety and their gear could be at risk. Harvesters regularly anchor their boats, compounding the risks from vessel wakes. In addition, Project- related vessels create wake from different directions and frequencies than natural waves, making them more difficult to predict and more dangerous for Pacheedaht harvesters.

Pacheedaht explained that the response to IR7-22 should be sent back to the Port to provide a complete assessment of potential impacts from vessel-related wake to Pacheedaht members who use Swiftsure Bank.

It is therefore concerning to see the same, unchanged response to IR7-22 now being referenced by the Port in the Pacheedaht-specific table at Appendix 10-C without any of the requested work having been done or any response whatsoever being provided to Pacheedaht’s concerns.

Concerns with Scope of Review

As raised in our comments to the Panel dated October 5, 201820, Pacheedaht continues to have serious concerns with the proposed scope of the environmental assessment for the Project.

In a letter to Pacheedaht dated December 11, 2018, the Panel stated that under the Review Panel’s Terms of Reference issued on April 17, 2015, marine shipping was included as an additional factor to be considered in the environmental assessment. However, the Terms of Reference continue to exclude marine shipping from the description of the Project. Pacheedaht continues to be concerned that this exclusion is an error and will lead to a flawed assessment.

We are requested that the Panel confirm that for the purposes of CEAA, 2012, the “designated project” does include Project-related marine shipping as an incidental activity. This is consistent with the Federal Court of Appeal decision in Tsleil-Waututh Nation v Canada, 2018 FCA 15321 as set out in our previous comments, and also with recent statements made by Canada in the National Energy Board’s reconsideration of the Trans Mountain Expansion Project:

Comment on National Energy Board Description

The Federal Authorities note that in the second paragraph of Appendixes 2 and 3 of Procedural Direction No. 4, the NEB states that ‘[t]he Project does not include Project-related marine shipping’. While this is accurate for the purposes of the conditions proposed under the NEBA, the NEB may wish to clarify that

19 Document #1314. 20 Document #1314. 21 Tsleil-Waututh Nation v Canada, 2018 FCA 153 (“Tsleil-Waututh”) at para 5.

Pacheedaht First Nation … 8

for the purposes of CEAA 2012, the “designated project” does include Project-related marine shipping as an incidental activity.22

We are deeply concerned by the apparently inconsistent approach being taken by the Panel with regard to marine shipping when compared with the reconsideration of the Trans Mountain Expansion Project by the National Energy Board. Please explain why marine shipping continues to be excluded from the definition of the designated project in this case, including in the Terms of Reference. PFN is also participating in the review of CEEA and the development of its new impacts assessment process; the outcomes of this process will also underpin the approach of the Panel in this project and related projects.

Hearing Process

In our letter to the Panel dated October 5, 2018, we provided a number of specific comments on the Panel’s proposed Hearing Procedure. These comments reflect concerns we have about the hearing process as proposed and we continue to look forward to the Panel’s response to these comments.

Yours truly,

Kristine Pearson Pacheedaht Referrals Coordinator cc: Mandell Pinder LLP, Attn. Virginia Mathers

22 National Energy Board Reconsideration of Trans Mountain Expansion Project, Environment and Climate Change Canada, Fisheries and Oceans Canada and Canadian Coast Guard, Health Canada, Natural Resources Canada, Parks Canada Agency, and Transport Canada - Written Argument-in-Chief dated January 17, 2019 [Filing #A6R2C7 in the Board’s Reconsideration] at page 6.