IN THE MATTER OF ENBRIDGE NORTHERN GATEWAY PROJECT JOINT REVIEW PANEL OH-4-2011 NORTHERN GATEWAY PIPELINES INC. ENBRIDGE NORTHERN GATEWAY PROJECT

FINAL ARGUMENT OF THE COUNCIL OF THE HAIDA NATION

PART I: INTRODUCTION

1. The Joint Review Panel (“JRP”) should not recommend approval of the Enbridge Northern Gateway (“ENG”) application. 2. First, the application is incomplete as it does not contain sufficient information specific to Haida Gwaii, and it does not consider the specific impacts to Haida Gwaii, Haida culture and Haida Aboriginal Rights, including stewardship responsibilities to Haida Territory as expressed through co-management agreements with the Government of Canada and the Province of British Columbia. 3. Second, if the JRP approved the application, it would be contrary to law because: a. the project cannot proceed without an assessment of the full impact upon Haida Gwaii, Haida culture and Haida Aboriginal Rights and there is not enough information before the JRP to reach a conclusion that there will not be significant adverse effects on Haida Gwaii and Haida people; b. the JRP process is not conducive to the reconciliation of Crown and Aboriginal relations, which is the primary objective of modern Aboriginal law; and c. the federal government has irretrievably compromised the assessment process by weakening and biasing the Environmental Assessment process in favour of the project and openly advocating for the project.

PART II: THE HAIDA NATION AND HAIDA TERRITORY

4. The Council of the Haida Nation (“CHN”) is the governing authority of the Haida Nation with a mandate to look after Haida Gwaii, pursue self-sufficiency, and to perpetuate Haida heritage and cultural identity. 1

1 Exhibit D42-6-16 AP 1 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 2

5. The Haida Nation’s territory includes the entire lands of Haida Gwaii, the surrounding waters, sub-surface and the air space. The surrounding waters include the entire Dixon Entrance, half of Hecate Strait (North and South), Queen Charlotte Sound halfway to Vancouver Island, and westward into the abyssal ocean depths, including the 200 nautical mile limit of the Exclusive Economic Zone (“Haida Territory”).2 6. Haida Territory is the only First Nation territory entirely contained within the Open Water Area (“OWA”) of the project. 7. All tanker routes go through, or are immediately adjacent to, the marine portion of the Haida Territory. The proposed tanker routes to and from the proposed Kitimat terminal are within Haida territorial waters.3 8. The Haida filed an Aboriginal Title case over the land and marine areas of Haida Territory and Canada’s courts have determined that the Haida have a strong prima facie case to Haida Gwaii.4 The Crown is an active participant in those proceedings and has notice and knowledge of both Haida Title and the successes with implementing reconciliation of Haida and Crown Title throughout Haida Territory. The Haida Title case is active and pending. 9. Haida Gwaii is not subject to a treaty and have not ceded, surrendered or modified Haida Aboriginal Rights or Title.

PART III: HAIDA GWAII IS A BIOLOGICAL AND CULTURAL JEWEL

10. Haida Gwaii, the “islands of the people”, is an archipelago of over 150 islands, extending roughly 250 km from its southern tip to the northernmost point and containing about 4,700 km of shoreline. Over 25% of the archipelago’s “interior” is within 1 km of saltwater, and no place is further than 20 km from the sea.5 The seamless sea-to- mountaintop connection is an integral part of Haida heritage and cultural identity. 11. It is common knowledge that Haida Gwaii is an ecologically significant archipelago worldwide. The Crown promulgates this viewpoint in its various management agreements for Haida Gwaii. 12. ENG’s application volumes confirm that Haida Gwaii is an oceanographic area of great significance. Eight of the twelve eco-sections within the OWA surround Haida Gwaii.6

2 Exhibit D42-6-16 AP 1; Exhibit D42-6-13 3 Exhibit B3-37 AP 25; Exhibit B23-34 AP 23. Haida territorial waters are outside the compulsory pilotage area so the tanker’s master can choose the route through these waters. The route lines signifying segments 5, 8 and 9 are illustrative, not definitive (Transcript Volume 157 lines 262-291) 4 Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 SCR 511, para 7; Exhibits D42-34-2 to D42- 34-16 5 D42-6-10 AP 10; D42-6-9 6 Exhibit B3-38 AP 3 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 3

13. Haida Gwaii is surrounded by all but two of the 9 ecosections and eight of the twelve “Oceanographic Areas of Significance” in the OWA outlined in ENG Application: a. High aggregations of macrozooplankton along the west coast of Haida Gwaii; b. Giiwee (Learmonth Bank) is located north of K’iis Gwaay (Langara Island); c. The eddies of At sgwii (McIntyre Bay), are located in Dixon Entrance from about Miiyaa Kun (Wiah Point) to Nee Kun (Rose Spit); d. Ja.a Xwii xyaang (Dogfish Banks) is located from Nee Kun (Rose Spit) and south down to just north of Kun Xalas (Cumshewa Head); and e. Hecate Strait Tidal Front, is located east of Nii Kun (Rose Spit), through the Hecate Strait, into Queen Charlottle Sound, and ending at Tlga Kun Gwaii (Lyell Island). f. The Haida eddies located at the southern tip of Haida Gwaii and surrounding Kunghit Island.7 14. Haida Gwaii is an important area for marine benthos including marine plants, invertebrates and groundfish.8 15. Haida Gwaii is a biologically important area in the OWA, providing critical habitat for many marine species which, in addition to the species referenced in paragraph 14, also include pelagic fish such as herring and eulachon, marine birds, marine mammals and, occasionally, turtles.9 16. The unique ecological and cultural richness of Haida Gwaii is reflected in the large number of joint management agreements between the Haida and Canada and British Columbia, which are summarized below. 17. Nee kun, Rose Spit, is the location of one of the origin histories of the Haida Nation. The Haida Nation designated this as a Haida Protected Area, and it is also designated by British Columbia as a provincial park. 18. sGaan Kinghlas, “supernatural being looking outwards” (also called Bowie Seamount), is another Haida Protected Area which became a marine protected area under federal law.10 19. The Haida and British Columbia are also jointly managing over half of the land base including nearshore and foreshore areas. 20. Gwaii Haanas is a Haida Protected Area and National Park Reserve which includes the surrounding marine environment. The Haida people witnessed the arrival of the first tree to Haida Gwaii, and took a crest to document that event. Ataanaa, House Island, located

7 Exhibit B3-38 AP 3 8 Exhibits B3-39 AP 13, B3-39 AP 40, B3-39 AP 5 9 Exhibits D42-6-45, D42-6-29 to D42-6-41; D42-4-10; D42-4-11 to D42-4-19; D42-4-2 to D42-4-9; D42-4-20; D42-4- 21 to D42-4-50 and D42-7-1 10 Bowie Seamount Marine Protected Area Regulations, SOR/2008-124, pursuant to Oceans Act S.C. 1996 c.31. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 4

within Gwaii Haanas is the location of one of our origin stories involving sGuuluu Jaad, Foam Woman and the birth of Haida people who are Ravens. One of the birthplaces of Haida people who are Eagles involving ts’aalaakuns, is at Cumshewa, which is adjacent to Gwaii Haanas. 21. Gwaii Haanas also contains a UNESCO World Heritage Site, called sGan gwaay or nansdins (Ninstints).

PART IV: FLAWED METHODOLOGY

22. The potential for significant adverse impacts upon the environment of Haida Gwaii and the culture of the Haida resulting from an oil spill is so large that a focused and thorough environmental assessment of the potential impacts of the Northern Gateway Project (“NGP”) on Haida Aboriginal Rights and Title in Haida Gwaii (including the surrounding marine environment) should have been conducted. 23. ENG failed to conduct an environmental assessment for Haida Gwaii because, in its view, the potential for an oil spill in the OWA11 is too low12. While ENG acknowledges concerns regarding potential spills – and admits that there could be significant adverse consequences from such a spill – ENG takes the position that an environmental assessment is not necessary, in part, because “the marine transportation route segments within the OWA are considered to have a very low spill probability relative to other areas13.”14 The Haida disagree; the history of the industry and the prevalence of human error prove otherwise. ENG has totally failed to make its case. 24. The Haida Nation maintains that ENG’s assumptions and methodology regarding the Quantitative Risk Assessment (“QRA”) are incorrect and flawed, and aligns with the argument of Coastal First Nations regarding: (1) the likelihood of adverse environmental effects; (2) failure to consider outlier events; and (3) the fate, behaviour and recovery of spilled diluted bitumen. 25. ENG assumed (based on the faulty QRA) that there is relatively no risk to the OWA routes so ENG did not bother to conduct an environmental assessment of potential impacts to Haida Gwaii. Instead, ENG made an ecological risk assessment based on a literature review which is not capable of accurately representing or predicting the likely effects of an oil spill on the marine ecosystems of Haida Gwaii. And, the Government of Canada produced a TERMPOL study that provided only a cursory overview of the Haida Gwaii ecosystem and impacts of an oil spill.

11 The “Open Water Area” includes Dixon Entrance, Hecate Strait, and Queen Charlotte Sound. 12 ENG has determined that “the return period for spills in the OWA that could potentially affect HG were found to be the most unlikely of all spill scenarios”. ENG response to JRP Information Request 10.10 (June 2012), p. 2. 13 “Other areas” being Browning Entrance, Principe Channel, Caamano Sound, Wright Sound, and Douglas Channel. 14 ENG response to JRP Information Request 10.10 (June 2012), p. 2. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 5

26. ENG’s approach to impact assessment of the OWAs, including Haida Gwaii, is unacceptable in view of the likelihood of significant and potentially long term or irreversible adverse effects on the ecosystems of Haida Gwaii resulting from an oil spill in the marine environment around Haida Gwaii. ENG did not adequately assess the potential for the introduction of aquatic invasive species to Haida Gwaii by NGP which could cause irreversible harm (see section 3.9). The Haida submit that ENG’s approach is fundamentally flawed and ENGs’ application should not be approved by the JRP or the Governor-in-Council.

PART V: ENBRIDGE NORTHERN GATEWAY FAILED TO MEET FILING REQUIREMENTS A. ENBRIDGE NORTHERN GATEWAY’S FILING REQUIREMENTS 27. ENG has failed to meet the requirements for filing materials for the application to the JRP because ENG did not address potential environmental and socio-economic effects on Haida Gwaii and the Haida people, did not advise the JRP how the Haida Nation’s concerns will be addressed in a meaningful way, and did not incorporate Haida traditional knowledge in its application updates to the JRP. These requirements are mandatory prerequisites for a successful application.

1. Aboriginal Peoples 28. ENG’s requirements for filing materials for the application are set out in the Amended JRP Agreement, the NEB Filing Manual and the Scope of Factors for the Marine Component15 relating to the proposed marine terminal at Kitimat and tanker routes. 29. ENG must “provide evidence regarding the concerns of Aboriginal groups”,16 identify any effects on Haida Aboriginal Rights and interests, including current use of lands, waters and resources uses for traditional purposes, and outline the proposed methods to manage and mitigate any such effects to an acceptable level. ENG must provide a detailed description of the consultations, indicating the concerns raised, how those concerns were addressed, and any outstanding concerns.17 ENG bears the onus to bring this evidence forward in a thorough and unified way so a reasonable assessment can be made of the effects of the proposal on the Haida. ENG failed to do this.

15 August 2009, Canadian Environmental Assessment Agency, “Scope of Factors for the Marine Component – Northern Gateway Pipeline Project Guidance for the assessment of the environmental effects of the Northern Gateway Pipeline Project as proposed by Northern Gateway Pipelines Limited Partnership” (the “Scope of Factors for the Marine Component”). 16 Section 6.5 of the Amended Agreement between the National Energy Board and the Minister of the Environment Concerning the Review of the Northern Gateway Pipeline Project, (the “Amended JRP Agreement”). 17 Section 6.4 of Scope of Factors for the Marine Component. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 6

30. Section B below shows that ENG did not consider the evidence provided by the Haida Nation and thereby failed to fully appreciate and incorporate the potential environmental and socio-economic effects of the project with regard to the Haida Nation. Without this crucial understanding, any purported attempt to address the effects is meaningless.

2. Implementation of the Consultation Program 31. ENG must ensure that all those who are potentially affected, including Aboriginal Peoples, are aware of the project, have been “adequately consulted” and that any concerns raised have been considered, and addressed as appropriate. 32. ENG must provide evidence to the JRP regarding information provided by Aboriginal peoples, a summary of concerns provided and responses made, describe how concerns will be addressed, and how their input influenced the design, construction or operation of the project.18 Section B below shows that ENG failed to address outstanding concerns raised by the Haida Nation.

3. Traditional Knowledge 33. The Filing Manual states that ENG “consider augmenting the application with local and traditional knowledge and integrating the information and knowledge, where appropriate, into the design of the project; and where local and traditional knowledge is obtained, provide an opportunity for the individual who provided the information to confirm the interpretation of the information and how it was used in the project design.”19 34. The Scope of Factors for the Marine Component provides stronger language regarding consideration of traditional knowledge:

Community knowledge and Aboriginal traditional knowledge have an important contribution to make to an environmental assessment. In combination with other information sources, it may be valuable in achieving a better understanding of potential impacts of projects. Community knowledge and Aboriginal traditional knowledge refers to the broad base of knowledge held by Aboriginal peoples, individuals and by communities that may be based on teachings, personal observation and experience, or passed on from one generation to another through oral and/or written traditions.

It is recognized that approaches to community knowledge and Aboriginal traditional knowledge, customs and protocols may differ among communities and persons with respect to the use, management and protection of this knowledge. The Panel will consider the views of communities, Aboriginal peoples, and traditional and local knowledge holders during the review process. Therefore, the proponent must incorporate into the application the community knowledge and

18 Filing Manual, 3.3.3, p. 3-5 to 3-6. 19 Filing Manual, 3.3.3, p. 3-7. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 7

Aboriginal traditional knowledge to which it has access or that it may reasonably be expected to acquire through appropriate due diligence, in keeping with appropriate ethical standards and without breaching obligations of confidentiality.20 [Emphases added]

35. To “incorporate” means, at a minimum, to understand and reflect the Aboriginal perspective on environmental issues in a meaningful way in the application materials. 36. The Haida Nation filed voluminous traditional knowledge in the Haida Marine Traditional Knowledge Study (“HMTK Study”).21 None of this information was incorporated into the application updates, as detailed in section B below. 37. In addition, citizens of the Haida Nation provided a wealth of traditional knowledge in the community hearings (“Oral History Evidence”).22 None of this knowledge (summarized in section B below) was incorporated into or reflected in the application updates.

B. INCOMPLETE APPLICATION VOLUMES, APPLICATION UPDATES, AND RESPONSES TO THE JRP 38. The application volumes are incomplete as they do not address any evidence specific to Haida Gwaii. CHN filed voluminous evidence with the JRP, in addition to the HMTK Study, the Oral History Evidence, and the Living Marine Legacy (“LML”)23 reports (the “Haida Evidence”). 39. The Haida Evidence provides information about the nature and extent of Haida Aboriginal Rights and Title in Haida Gwaii, including the surrounding marine environment, and the exercise of Haida Rights and Title through co-management agreements over marine species and the marine environment of Haida Gwaii. The Haida Evidence should have been considered by ENG and incorporated in its responses to the JRP so that the JRP could assess the potential impacts of the NGP on Haida Aboriginal Rights and Title. 40. ENG did not consider the Haida Evidence and discounted the Oral History Evidence as only providing “passing references” to traditional harvesting sites.24

1. Living Marine Legacy 41. The LML reports were prepared by Parks Canada through a joint initiative of the Government of Canada and the Haida Nation with the objective of informing joint management of Gwaii Haanas by Parks Canada and the Haida Nation.

20 Scope of Factors for the Marine Component, s. 2.1, p. 2. 21 Exhibits D42-7-40 (Volume 1); D42-7-41 to D42-7-44 (Volume 2); D42-7-45 to D42-7-47 (Volume 3) 22 Transcript Volumes 22, 23, 30, 31 23 D42-4-10 (Volume 1); D42-4-11 to D42-4-19 (Volume 2); D42-4-2 to D42-4-9 (Volume 3); D42-4-20 (Volume 4); D42-4-21 to D42-4-50 and D42-7-1 (Volume 5) 24 Exhibit B74-8 AP 31 (Northern Gateway Response to JRP IR 10.10) COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 8

42. The LML reports were published well before the ENG application was filed in 2010, as the reports were completed over a 6-year period from 1999 to 2006. 43. The LML reports provide baseline inventories of marine plants, invertebrates, birds, and mammals along the coastline of Haida Gwaii (i.e. despite the titles, the reports are not restricted to the Gwaii Haanas area). This baseline data is more accurate than the information relied upon in ENG’s application volumes to estimate the potential locations of marine species in the OWA. 44. ENG did not incorporate the LML baseline inventories into the application, even though it was aware of the existence and purpose of the reports.25 In fact, ENG admitted that it had deliberately chosen not to incorporate the reports because they are “focused primarily on the shoreline areas of Haida Gwaii as opposed to the open water area”. ENG stated that, as the tanker routes are far from the shoreline of Haida Gwaii, it “would not be referring to the shoreline information in great detail.”26 This admission supports CHN’s argument that ENG made a deliberate choice not to conduct an environmental assessment with respect to the potential impact of oil spills on Haida Gwaii. 45. ENG is required to search for and embody in its application reports like the LML as the project is likely to affect a National Park (or National Park Reserve, such as Gwaii Haanas which is also a Haida Heritage Site).27 46. When the Council of the Haida Nation questioned ENG about whether Parks Canada or the Gwaii Haanas Archipelago Management Board (“AMB”) had been consulted about Gwaii Haanas, ENG witnesses could not confirm whether they had discussed Gwaii Haanas with Parks Canada or the AMB.28 Parks Canada has not informed the Haida of any consultations with ENG regarding the potential impact of the project on Gwaii Haanas.

2. Haida Marine Traditional Knowledge Study29 47. The HMTK Study was completed over a 3-year period and involved interviews with 54 Haida, 30 including many Elders, and the three-volume report includes over 60 maps which document the importance of Haida Territory and marine resource harvesting for Haida people. 48. The HMTK Study includes a wealth of information regarding traditional harvesting activities undertaken by the Haida, both historically and currently, locations of harvesting

25 Transcript Volume 149 lines 22539-22554 26 Transcript Volume 149 lines 22562-22563 27 NEB Filing Manual, p.3-4, Table, p. 3-12 28 Transcript Volume 149 lines 22555-22556 29 Exhibits D42-7-40 to D42-7-47 30 Transcript Volume 22 lines 13112-13113 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 9

and the times of year that harvesting is undertaken for various species. The result is a more holistic and comprehensive understanding of the ecosystem than would be obtained from a conventional Traditional Use Study. 49. The HMTK Study identifies areas, activities, species, specific sites, systems, practices and other rights that were not captured in ENG’s assessment of potential impacts. 50. The map, “Ocean and Way of Life”,31 is based on the HMTK Study. It illustrates the vast body of marine knowledge and fishing practices of the Haida.

3. Oral History Evidence 51. The Oral History Evidence provides references to areas, activities, species, specific sites, activities, systems, practices or rights that were not captured in ENG’s assessment of potential impacts. These were not incorporated into the application. 52. We summarize eight key themes of the Haida Oral History Evidence below.

3.1 Traditional Knowledge and Haida Laws 53. The Haida witnesses shared traditional knowledge about the relationship between the Haida, the natural world and the spirit world (which contain the Sacred and Natural Laws of the Haida Nation). 54. Oral Histories are an important source of indigenous laws.32 Haida laws provide knowledge developed over millennia of experience about the proper relationships of the Haida people with each other, with other First Nations, and with the land and sea. Haida laws must be considered and applied when assessing projects that will impact upon these relationships. 55. For instance, Haida witnesses shared the following oral history knowledge in their evidence: a. Skill kaat’lass, Reg Davidson shared one of the oral histories about the origin of the Haida people at Nee Kkun, Rose Spit.33 b. Guud san glans, Robert Davidson shared oral histories about Raven known as Nang Kilsdlaas; about the prominence of Southeast Wind in life in Haida Gwaii; oral histories about the importance of salmon; and oral histories and teachings about the Blind Halibut Fishermen.34 c. Ildagwaay, Bea Harley, shared teachings about the principle of Xiinuut and the importance of addressing all concerns.35

31 Exhibit D42-6-20 AP 8 32 John Borrows. Canada’s Indigenous Constitution. Toronto: U of T Press, 2010, pp. 23-58. 33 Transcript Volume 22 lines 12537-12538 34 Transcript Volume 22, lines 13262-13264; lines 13266-13272; lines 13275-13282; and lines 13285-13289 respectively. 35 Transcript Volume 30 lines 20429-20430. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 10

d. Gwaganad, Diane Brown shared oral histories about how Haida Gwaii was created; the creation of Haida people; places of origin; how Supernaturals took pity and helped the Haida survive; the connection between underworld and upper world; killer whales at Nee Kun and connection to people from Old Massett; the meeting of the first clans to decide the laws of the Haida Nation; the teachings arising from famine and medicines.36 e. sGaanajaadsk’yaa ga Xiigangs, Kathleen Hans related her clan history and teachings from Henry Young including how Supernatural women taught the Haida to fish and the importance of seafood to potlatches.37 f. t’aawgiidad, Jenny Cross explained how in the Haida worldview the Haida are descendants of the ocean and therefore a fundamental law is to have respect for the ocean; demonstrated the connection between this law and music and dance; the importance of giving thanks and making food offerings.38 g. Jisgange, Nika Collison shared the oral history that confirms that the birthplace of Haida is the ocean, and explained and demonstrated supernatural beings that have a bearing on marine projects: Foam Woman; Creek Woman; Ice Woman; and Nang Kilsdlaas .39 56. These oral histories are part of the legal foundation for the proper relationship between humans and the marine environment, the importance of marine resources to the Haida people, intimate knowledge of the land and sea, and the importance of knowledge of key weather patterns in Haida Gwaii, particularly those that create foul weather along the proposed tanker routes for the NGP. This information was not factored or incorporated into the application. 57. In 2007 the Haida formally adopted traditional “Haida Ethics and Values” as the guiding principles for the management of the land and sea of Haida Gwaii.40 58. These fundamental principles are long-held traditional knowledge that has guided Haida management of the land and sea over time. They are summarized below: • gina waadluxan, which means that everything depends on everything else—or interconnectedness; • yahguudang, or yakguudang, which means respect; • ‘Laa guu ga kanhllns, which means responsibility; • isda ad diigii isda which means reciprocity;

36 Transcript Volume 30 lines 20452-20457; lines 20459-20461; lines 20462-20467; lines 20468-20470; lines 20472-20477; lines 20480-20485 and lines 20489-20494 respectively. 37 Transcript Volume 30 lines 20550-20552; lines 20577-20581; and lines 20587-20589 respectively. 38 Transcript Volume 30 line 20924; line 20928; and lines 20933-20950 respectively. 39 Transcript Volume 30 line 21020; 21013-21018; lines 21006-21011; 21021-21023 and lines 21001-21004. 40 Exhibit D42-6-15, AP4: Council of the Haida Nation Marine Strategic Plan – “Haida Ethics and Values” (Nov. 2007), and Exhibit D42-6-26, AP4: Towards a Marine Use Plan: Discussion Paper (Nov. 2007) COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 11

• gina k’aadang.nga gii uu tl’ k’anguudang seeking wise council—which embraces not only the wisdom of the elders but also scientific knowledge and that generated by environmental organizations; and • the application of giid tll’juus and the Haida proverb “the world is as sharp as the edge of a knife” which teaches the principle of balance 59. The Haida perspective on environmental issues, as expressed in the Haida Ethics and Values, was not incorporated into the application updates or in ENG’s response to information requests from the JRP.41 The NGP would seriously jeopardize the Haida’s relationship with the land and marine areas of Haida Gwaii and their ability to fulfill their stewardship responsibilities under Haida law.

3.2 Harvesting of Resources 60. The Haida shared with the JRP a wealth of information about harvesting marine resources from specific locations around Haida Gwaii. This knowledge augmented the knowledge contained in the HMTK Study to show that the Haida harvest about 150 species throughout Haida Gwaii.42 61. The marine species that are documented in the HMTK Study as occurring, being harvested or having cultural significance throughout Haida Gwaii include: Abalone, Ancient murrelet, Arrowtooth founder, Basking shark, Bear, Big skate, Black chiton, Black Oystercatcher, Black rockfish, Black-footed Albatross, Black-legged Kittiwake, Blue mussel, Blue shark, Blue whale, Bocaccio rockfish, Box crab, Brant goose, Bull Kelp, Butter Clam, Butter sole, Cabezon rockfish, California mussel, Canada goose, Canary rockfish, China rockfish, Chum salmon, Cockle, Coho Salmon, Common Merganser, Common Murre, Copper rockfish, Cormorant, Cutthroat trout, Dall porpoise, Deer, Dogfish shark, Dolly, Dolphins, Dulse seaweed, Dungeness crab, Dusky rockfish, Early seaweed, Eelgrass, Fulmar, Fur seal, Giant Kelp, Gooseneck barnacle, Gray whales, Great white sharks, Green sea urchin, Green-winged Teal, Gumboot chiton, Halibut, Harbour porpoise, Harbour seal, Harlequin duck, Herring, Horse Clam, Humboldt squid, Humpback whale, Japanese oyster, Killer whale, Laver seaweed, Leatherback turtle, Lemon sole, Limpits, Lingcod, Longnose skate, Mackerel, Mallard duck, Marbled Murrelet, Minke whales, Native Littleneck Clam, Needlefish, Northern Fulmar, Octopus, Pacific cod, Pacific ocean perch, Pacific sanddab, Pacific saury, Pacific tomcod, Pacific white-sided dolphin, Pigeon Guillemot, Pilchards, Pine marten, Pink salmon, Puffin, Purple olive snails, Purple sea urchin, Purple-hinged rock scallop, Quillback rockfish, Ratfish, Razor Clam, Red rock crab, Red sea urchin, Red turban snails, Redbanded rockfish, Rhinocerous Auklet, River otter, Rock oysters, Rock sole, Sablefish (black cod), Sandpiper, Sea cucumber, Sea lion, Sea star, Sea turtles, Seagull, Shrimp, Silvergray rockfish, Six-gill shark, Smelt, Sockeye salmon, Sooty Shearwater,

41 Exhibit A48-1 (JRP IR 10 to Enbridge); Exhibit B74-8 AP 31-32 (Enbridge Response to JRP IR 10.10) 42 Exhibit D42-7-40 AP 22 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 12

Sperm whale, Spider crab, Spot prawn, Spring salmon, Starry founder, Steelhead trout, Sunfish, Tanner crab, Thornyheads, Tiger rockfish, Varden char, Vermillion rockfish, Weathervane scallop, Widow rockfish, Wild Sea Asparagus, Yelloweye rockfish, Yellowtail rockfish. 43 62. All of these species are important to the Haida, for subsistence, spiritual, cultural, trade and commercial reasons. For the Haida, harvesting is more than an activity to obtain sustenance. The what, where, when, how and by whom harvesting is done is inseparable from Haida heritage and cultural identity. Traditional knowledge is passed down through the generations at harvesting sites. Any interference with the traditional use of a resource or site resulting from an oil spill will be culturally significant. 63. Below we summarize the testimony from Haida Elders and witnesses at the oral history hearings in 2012 about resources harvested throughout Haida Gwaii:44 a. staga katz, Margaret Edgars, gathers razor clams, butter clams, cockles and chitons from North Beach to Tow Hill; seaweed from Yaan/Yakaan Point west of Capte Edenshaw and North Island (Langara Island); mussels, coho, butter clams, abalone and sGiidaana from Langara Island; butter clams from Port Clements; sea urchins and crab from Lepas Bay; clams from Naden Harbour; spring salmon and halibut from Shag Rock; sockeye from Jaalan River, the Aayan, Awun, and Yakoun rivers; dog salmon from the Aayan River; halibut from Massett Inlet to Naden Harbour; and coho crab, smelts and clams from Masset Inlet.45 b. sGaanajaadsk’yaa ga Xiigangs. Kathleen Hans, discussed gathering cockles, seaweed and clams and going to Copper Bay, Skidegate and North Island to gather food; coho, halibut and dog salmon; gathering k’aaw (herring spawn-on-kelp) from Sgaay.yaas; halibut and flounders off the bar at Sandspit; and salmon from the Copper River.46 c. glii gaa, Oliver Bell, gathers crab, prawns, sea urchin, octopus, roe-on-kelp, seaweed, springs, coho, pinks, and chum salmon; halibut, rockfish, ling cod, red snapper, black cod and herring; seaweed, salmon, halibut, and ancient murrelets from Langara Island as well as octopus; crabs, sockeye, pinks, chum, deer and butter clams from Naden Harbour; octopus from Naden Harbour and Masset Inlet; sockeye, chum and coho salmon from the Awun, Aayan, Jaalan and Yakoun Rivers; roe-on-kelp from

43 List compiled from the following: HMTK Volume 1, Ex. D42-7-40, AP. 24; HMTK Study Volume 2: Seascape: Part 1, Ex. D42-7-41, AP. 9, AP.24; HMTK Volume 2, Part 2, Ex. D42-7-42, AP. 8, AP.24; HMTK Volume 2, Part 3, Ex. D42-7-43, AP. 5, AP.24; HMTK Study Volume 3, Part 1, Ex. D42-7-45, AP.27; HMTK Volume 3, Part 2, Ex. D42-7- 46, AP.32 and HMTK Volume 3, Part 3, Ex. D42-7-47, AP.1, AP.19. 44 The Haida witnesses testified, in the limited time available at the oral history hearings to harvesting the following marine species throughout Haida Gwaii: abalone, barnacles, butter clams, chitons, cockles, crab, flounders, guuduck clams, halibut, herring, horse clams, kelp, ling cod, mussels, octopus, oysters, prawns, sablefish (black cod), seaweed (including sGyuu / sGiw (black seaweed), sea cucumbers, sea urchins, seal, scallops, shrimp, sea urchin, spawn on kelp, smelts, all species of salmon (coho, dog salmon, sockeye, spring salmon, pinks, steelhead), razor clams, red snapper, rockfish and rockfish eggs. 45 Transcript Volume 22 lines 12434-12440; lines 12443-12445; lines 12474-12475; 12481-12482; line 12485; lines 12487- 12491; line 12492; line 12496-12498 and line 12499. 46 Transcript Volume 30 lines 20560-20562; line 20567-20568; and line 20597. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 13

Port Louis, Alliford Bay and Selwyn Inlet; razor clams, butter clams, cockles and scallops from Tow Hill to Rose Spit; discussed the North Beach razor clam fishery; fishing all species of salmon on the West Coast to Frederick Island; fishing the East Coast to Cumshewa for chum salmon; Tow Hill to Langara for halibut and salmon; and fishing in Central Dixon Entrance for halibut.47 d. gin waadluuwan uulaa ‘iistaa ‘iiyaayang, Trevor Russ, gathers salmon, halibut, black cod, razor clams, butter clams, scallops, cockles, chitons, and seaweed, from Langara Island to Rose Spit; sockeye salmon from the Jaalan River; Dungeness crab from the east coast of Haida Gwaii, Hecate Strait, McIntyre Bay and northeast of Rose Spit; and halibut, black cod, and rock fish from the Dixon Entrance, Continental Shelf and northwest of Frederick Island; and spawn-on-kelp from Skincuttle, De La Beche and Selwyn Inlets.48 e. Gaayinguuhlas, Roy Jones Sr. gathers mussels, sea urchins, clams, cockles, barnacles, oysters, scallops, chitons, sea cucumbers, crabs, and octopus from every harbor and bay in Skidegate Inlet, the West Coast and around Haida Gwaii; Dungeness Crab from the West Coast of Haida Gwaii; herring and herring spawn-on-kelp from Skincuttle, Selwyn, Cumshewa and Skidegate Inlets; spawn-on-kelp from Burnaby Island, north to Hudson Bay, Copper Island and Sgaal ts’id Harbour, as well as Skincuttle Inlet to south of Harriet Harbour; all species of salmon from Copper Bay, Alliford Bay, Sachs Creek, Haana, Deena Channel, Kano Inlet, Reynold Sound, Pink Creek, Windy Bay, Gate Creek, Lagoon Bay, and all along the East Coast around the southern top of Haida Gwaii to Louscoone Inlet, Flamingo Inlet, Hecate Strait, North Island and Hippa Island; halibut from Scudder Point, Skincuttle Inlet, Copper Island, All Alone Stone, Moresby Island; and geese, mallards, sawbills, brandts and nightbirds from Selwyn, Cumshewa and Skidegate Inlets.49 64. All of these species are at risk of being adversely affected by an oil spill. Only a few were considered by ENG.

3.3 Impacts on Resources from an Oil Spill 65. In addition, we provide additional comments regarding five of many culturally important species that will be impacted by an oil spill. 66. sGiw / sGyuu, black seaweed, which is of the genus Porphyra is of great cultural significance to Haida people. It is an important food and trade item, both within the Haida Nation and with First Nations neighbours. 67. sGyuu / sGiw (black seaweed) is primarily harvested in northern Haida Gwaii, in Dixon Entrance and is found in the upper intertidal. sGyuu / sGiw (black seaweed) is “among the least well-known of the marine algae”. ENG’s expert admitted that none of the 400

47 Transcript Volume 22 line 12607; line 12610; line 12611; line 12615-12617; lines 12628-12629; line 12636; and line 12642. 48 Transcript Volume 22 line 12735; line 12737-12738; line 12742; and lines 12744-12748. 49 Transcript Volume 30 lines 20611-20621; and lines 20625-20628. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 14

peer-reviewed publications that he had reviewed about the effects of the Exxon Valdez oil spill on components of the ecosystem actually mentioned this seaweed (Porphyra) because “it’s a relatively rare species in the Prince William Sound”. The lack of information about this important resource reinforces the necessity of conducting a proper assessment on the potential impact of an oil spill on sGyuu / sGiw. 68. Adult K’ust’aan (Dungeness Crab) are a species with high cultural and economic significance to the Haida. Dungeness Crab are concentrated in northern Haida Gwaii, in Dogfish Banks of Hecate Strait and near McIntyre Bay in Dixon Entrance. Aggregations of adult Dungeness crab are found in the shallow waters of Dogfish Bank in Hecate Strait and nearby McIntyre Bay.50 The Rose Spit Eddy in McIntyre Bay causes eastward flow along North Beach and is important for retention of Dungeness crab larvae before they settle along the north coast of Graham Island.51 The crab larvae is valuable food for Pacific herring, rockfish and salmon.52 69. Crab larvae remain in the water column for 3-4 months before they are dispersed by ocean currents on suitable substrates. Juveniles reside in shallow coastal waters, tidal flats and estuaries, living in beds of eelgrass and other aquatic vegetation for several months.53 70. The largest landings in BC come from the area from Naden Harbour eastward to McIntyre Bay, and Hecate Strait including Dogfish Bank. 71. ENG’s experts have admitted that the semi-exposed conditions of North Beach could result in spilled diluted bitumen submerging in the intertidal and subtidal waters and also spreading laterally across the beach. When spilled diluted bitumen oil reaches North Beach, the oil will mix with the sand and submerge in the intertidal and subtidal waters, then wash back to the shoreline and re-oil the beach. 54 This process would seriously impact the razor clam and Dungeness crab55 in the area, and could adversely affect the crab larvae in the Rose Spit Eddy. There would be a disastrous loss of critical traditional and commercial resources for the Haida. 72. As explained by ENG’s experts, the potential effects of an oil spill on crabs include: (a) they if covered at low tide, physical smothering; (b) planktonic larvae (young forms of the crab) would be vulnerable to oil in the open water; (c) there is also the possibility of direct exposure through gill fouling as crabs breathe with gills; (d) in the intertidal areas, there would be smothering; and (e) in the shallow sub-tidal, the issue would be toxicity.56 73. The largest known stock of K’amahl / K’aamahl (razor clams) in the OWA is in the area west of Masset to Rose Spit (called North Beach) along the north coast of Haida Gwaii.

50 Exhibit B23-15 AP 119 51 Exhibit 42-4-35 AP 14 52 Exhibit B23-15 AP 119 53 Exhibit B23-15 AP 119 54 Transcript Volume 136, lines 5462, 5467-5468 55 Transcript Volume 144 lines 16992-16993, 16995-16998, 17024-17027 56 Transcript Volume 136 lines 5310-5316, 5319-5324 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 15

In 2003, 279 out of 285 participants were Haida. In 2004, landings of 92.6 tonnes yielded a value of $234,000.57 74. North Beach is the only commercial intertidal digging fishery for razor clams in BC, and most of the participants are Haida. 100% of the razor clams is processed in Masset. 75. The effect of an oil spill on razor clams can vary. According to ENG’s expert, in the Shetlands Island, North of Scotland, a spill of a very large concentration of hydrocarbons into the water reportedly caused some razor clams to eject themselves from the sediment, in response to the toxin. ENG’s expert was not aware of any study that had actually been done pre- and post-spill to look at the effects on the populations.58 76. This uncertainty relating to the effects of an oil spill on razor clams highlights, yet again, the deficiency of ENG’s assessment when it comes to marine resources found on Haida Gwaii. 77. k’aaw /k’aw (herring spawn on kelp) is of great cultural significance to Haida people. It is not only an important cultural food, but it is an important traditional fishery. 78. The k’aaw commercial fishery has also involved a high level of Haida participation.59 79. Iinang (Herring) spawning takes place from the winter and spring, and spawning occurs in a range of intertidal and subtidal areas. Herring populations on Haida Gwaii are depressed and have not supported commercial fisheries for several years, since 2005. 80. When questioned about herring, ENG’s experts were not knowledgeable about the spawning habits or habitat areas (intertidal and subtidal) of the Haida Gwaii herring.60 81. GalGahlyan (abalone) is of great cultural significance to Haida people and is found throughout Haida Territory including Dixon Entrance, Hecate Strait and Queen Charlotte Strait. 82. ENG acknowledged that abalone is threatened61 and since 2011, it is now listed as “endangered” under the Species at Risk Act. 83. Haida Fisheries is involved in stewardship activities and research to rebuild the abalone populations,62 which fishery has been closed now for 22 years. Abalone recovery will be next to impossible should it be further degraded by an oil spill. 84. When asked about the potential impact of an oil spill on an endangered species like abalone which is undergoing restoration efforts, ENG’s expert admitted that there is a general lack of information about the impact on abalone.63

57 Exhibit D42-4-28 AP 8 58 Transcript Volume 136 lines 5387-5395 59 Exhibit D42-7-46 AP 3 (K’aaw, SOK), AP 6 (Herring) 60 Transcript Volume 136 lines 5554-559 61 Exhibit B3-39 AP 17 62 Exhibit D42-6-4 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 16

85. The Haida witnesses were consistent in their testimony that an oil spill would have a devastating impact on the habitat and marine resources of Haida Gwaii, and on Haida culture, including the following evidence: a. Guujaaw spoke of how the Haida origins and lifeway for thousands of years has been tied to the land and waters.64 b. staga katz, Margaret Edgars, spoke of the impact to fishing and the Haida way of life and described the ocean as Haida livelihood.65 c. Skill kaat’lass, Reg Davidson, described the Haida as depending on the ocean for survival, literally and culturally, from the beginning of time and stated that an oil spill would cause the Haida culture to die.66 d. Nang Jingwas Russ Jones described the effects of an oil spill to significant habitats around Haida Gwaii, long term effects on fish, shellfish and marine animals, possible impacts to key fisheries economies and species; including black seaweed; and stated that an oil spill would have permanent long term effects on the environment, Haida lifeways and the Haida relationship with the natural environment of Haida Gwaii.67 e. guud sans glans, Robert Davidson, stated that the Haida culture “cannot sustain another blow to the oceans and the food that has nourished us for millennia.”68 f. Xiihliikigang, April Churchill, described the impact of an oil spill on the Haida Nation’s connection to both food and spiritual relationships, stating that an oil spill risks the “demise of a people and a culture”.69 g. t’aawgiidad, Jenny Cross described the connection between the Haida culture and the everyday environment, stating that without which the Haida “may never survive the holocaust that an inevitable oil spill may cause.”70 86. These concerns were not incorporated into or reflected in ENG’s application updates or in its response to the JRP.

3.4 Cumulative Cultural Effects 87. Maintaining traditional foods at abundance levels that can sustain food harvesting is critical to Haida culture, both for sustenance and to preserve cultural identity.71 A major concern for the Haida is long-term species declines including for salmon, herring and abalone. These declines are precipitated by incremental environmental and biological

63 Transcript Volume 136 lines 5508-5512 64 Transcript Volume 22 lines 12375-12376 and lines 12378-12379. 65 Transcript Volume 22 line 12508. 66 Transcript Volume 22 line 12571 and line 12574. 67 Transcript Volume 22 lines 13133-13135; lines 13159-13160; lines 13162-13183; and line 13226. 68 Transcript Volume 22 line 13312. 69 Transcript Volume 30 line 20201. 70 Transcript Volume 30 line 20931. 71 Exhibit D42-7-40 AP 57 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 17

factors seriously exposing at-risk species to further deterioration. ENG did not factor the negative cumulative impacts on important Haida species in its application or evidence. 88. Abalone is one of the most painful examples of a species decline with significant cultural impact, as indicated by the testimony given by gwaganad, Diane Brown: 20505. We haven't been able to harvest abalone for many years now because it was over-fished and almost made obsolete from us, but they are slowly coming back. I don't know when we'll ever be allowed to harvest again, but even that one food that we weren't able to access was very painful for the Elders.

20511. In my work as a community health rep, I was often with many of my Elders that passed on, and I was astonished at how many of those Elders wanted abalone just before they died. They asked for -- they would say, "I wished I could have some abalone”. Gaahlaay, my dad, requested abalone, but I couldn't get it for him. Jaadsang Kinghliiyas, Ada Yovanavich, who hardly ever ate it, wanted some in her death bed. And I remember Essie Greene and a few others wanted to have that as their last meal.

20512. And it was real shameful and heartbreaking not to be able to provide that particular food to these precious Elders, and that was only one food. And if we had a spill, all our foods would be gone and there'd be no point.72

89. Transmission of cultural knowledge is disrupted with the loss of a resource. Haida children have grown up without knowing the taste of abalone, how to find it or to harvest it.73 90. Barney Edgars explained the problem as follows: 14003. The other reason I want to bring this up is that there are -- how would I say it -- generation gaps where I guess if you were out to residential schools, everybody knows about the residential schools, they took all our culture away. And when they come back it’s that type of teaching that was missed, and there is certain areas now that none of them have actually fished. 14004. A good example of this would be the Aayan River, which is down here. A few years back in the ‘80s they ended up experimenting. I believe DFO experimented with that and fertilized the lake. As a result of that, the sockeye run dropped off so our people said no, we’re not fishing that, if we keep fishing that there’ll be nothing left. But to this day that river isn’t open. And there is some kids that I know in the village here who’ve never -- never been to Aayan because we don’t fish it anymore 14005. So it’s like -- I don’t know how I would explain it here, but there’s a generation gap every time something like that occurs, whether it’s residential

72 Transcript Volume 301 73 Exhibit D42-7-40 AP 57; Transcript Volume 22 line 12848 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 18

schools, whether it’s some bonehead scientist experimenting. And it’s like if the oil spill -- or if the tankers were allowed to come here and then they do spill oil I would be concerned I guess at how big that generation gap would be.74 91. sGidaana / sGinxaana (ancient murrelet) is a marine bird of great cultural significance to Haida people.75 Fifty percent of the global population of Ancient Murrelets breed on Haida Gwaii, the only breeding colony located in Canada. The Ancient Murrelet is listed as a species of Special Concern under Schedule 1 of the Species at Risk Act.76 Some of the colonies on Haida Gwaii have been extirpated.77 92. Species at risk, like sGidaana / sGinxaana, or endangered, like the abalone, are at risk of an oil spill leading to their further demise and even extinction.78 If that was to happen, the cultural loss to the Haida people would be immeasurable. 93. In its response to the JRP’s request for an update incorporating Haida Oral History Evidence, ENG merely noted that past industrial activity and current commercial, recreational and sport fishing was having an impact on the Haida’s ability to undertake traditional harvesting activities.79 ENG failed to acknowledge that its proposed industrial shipping activity could exacerbate the problem a hundred-fold in the event of an oil spill. ENG failed to properly incorporate and address Haida’s concern about the cumulative cultural impact resulting from the loss of an important marine resource.

3.5 Haida Socio-Economic Impacts 94. The Haida Elders and citizens provided a substantial body of knowledge about the socio-economic impacts of this project, which is summarized below: a. glii gaa, Oliver Bell, described his personal and family history of fishing; the history of commercial fishing out of Massett; the importance of the razor clam industry; and the importance of seafood to all of Haida Gwaii and its communities, noting that an oil spill would “take everything away from all of us”.80 b. Xylang jaad Xyaala, Leslie Brown described her role at HaiCo and its 4 business subsidiaries and discuss Haida employment at sports lodges, partnerships and sustainable economy. She stated that an oil spill would put the livelihood of the Haida people at risk.81 c. sGid kung, Vanessa Bennett-Bellis spoke of her role as a diver for the Haida Fisheries Program; the Haida Gwaii Marine Stewardship Group and various stock assessments; razor clam biomass assessment and the commercial razor clam fishery; family

74 Transcript Volume 23 75 D42-7-40 AP 57 76 E9-6-32 AP 75; Transcript Volume 22 line 13192 77 Exhibit D42-4-04 AP 9-11 78 Transcript Volume 22 line 13181 79 Exhibit A48-1 (JRP IR 10 to Enbridge); Exhibit B74-8 AP 31-32 (Enbridge Response to JRP IR 10.10) 80 Transcript Volume 22 line 12601; lines 12624-12629; and line 12667. 81 Transcript Volume 22 lines 12821-12830; and lines 12833-12834. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 19

involvement in commercial fishing; and Haida reliance on the ocean. She describes the spiritual relationship between the Haida and the ocean and notes that an oil spill would be devastating to Haida resource use, the coastlines, habitats and fisheries.82 d. Ron Brown Jr. spoke of his family history of commercial fishing and the depletion of marine resources through overfishing and commercialization.83 e. gaagwiis, Jason Alsop, described the Haida Heritage Centre and tourism84, and spoke of how an oil spill puts cultural revitalization, reconnection to Haida Gwaii and Haida culture and Haida ecosystem protection projects at risk. He states that an oil spill will destroy the uniqueness of Haida Gwaii and the Haida culture.85 f. Ildagwaay, Bea Harley described the importance of traditional foods to fighting diabetes.86 g. sGaanajaadsk’yaa ga Xiigangs, Kathleen Hans discussed the importance of traditional foods to Potlatches and Feasts.87 h. James Cowpar spoke of the socio-economic projects of the Skidegate Band Council.88 He stated that Haida culture is defined by the biodiversity of Haida Gwaii and that an oil spill would devastate both present day opportunities and future opportunities of the Haida people.89 i. Gaayinguuhlas, Roy Jones Sr. described the impact upon k’aaw fishery.90 j. Dals sgil, Randy Tennant spoke of living off the ocean; the need to rely on seafood due to high cost of food from stores; his experience as a commercial fisherman and ferry deckhand; and his experience working in sports fishing.91 95. The above oral history evidence supplemented written evidence regarding the marine economy of Haida Gwaii. As part of the Haida’s holistic approach to marine use planning, the Haida Nation conducted a baseline study of six marine sectors on Haida Gwaii (commercial fisheries; recreational fisheries; seafood processing; marine tourism; shipping and transportation; and research, monitoring and enforcement) with a view to pursuing sustainable economic development opportunities.92

82 Transcript Volume 22 line 12847; lines 12848-12852; lines 12854-12858; and lines 12892-12899. 83 Transcript Volume 22 line 12930; line 12938-12940; and lines 12949-12951. 84 Transcript Volume 30 line 20380-20383. 85 Transcript Volume 30 lines 20385-20386 and line 20394. 86 Transcript Volume 30 line 20426. 87 Transcript Volume 30 lines 20587-20589. 88 Transcript Volume 30 lines 20666-20668; line 20670; lines 20679-20681; lines 20683-20686; and lines 20696-20699. 89 Transcript Volume 30 line 20665 and line 20669. 90 Transcript Volume 30 lines 20618-20622; and lines 20629-20631. 91 Transcript Volume 30 line 20827; lines 20845-20846; lines 20866-20870; and lines 20878-20880. 92 Exhibit D42-6-2: Haida Gwaii Marine Market Sector Analysis Final Report COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 20

96. The Haida Gwaii Marine Market Sector Analysis Final Report summaries Haida and total employment by the different marine sectors. In total, they generate full-time, part-time and seasonal employment for 1,368 people.93 97. Average catch and landed value for species fished in Haida Gwaii waters; the annual value of landings averaged $84 million (1996-2006), or about 22% of BC landed value.94 The average value of landings for sablefish ($27.8 million), halibut ($23.3 million) and crab ($16.4 million) account for 81% of the value of all landings.95 98. Also addresses other fisheries such as the Razor clam fishery: the average annual harvest value was $264,000.96 99. It also estimates the total angler spending for recreational fishing on Haida Gwaii is about $88.2 million, of which sports fishing lodges account for $63 million97 – including WestCoast Resorts, which the Haida Nation acquired in 2011. 100. The evidence regarding socio-economic impacts was not factored into or incorporated into the application volumes or updates.

3.6 Navigation Hazards 101. Based on the QRA, ENG made a qualitative estimate of the return periods of an oil spill for the routes in the CCAA and OWA based, in part, on scaling factors to reflect local conditions including weather and oceanographic conditions. 102. The scaling factors used to reflect local conditions in the QRA was based on subjective opinions of: a. local mariners and pilots who have no experience with Very Large Crude Carriers (“VLCCs”) (as there are no VLCCs currently operating in British Columbia98); and b. local people in the marine community who were familiar with the CCAA, but not the OWA (as ENG was primarily interested in the CCCA routes).99 103. ENG did not receive and incorporate in its application any input regarding local conditions from First Nations and Haida mariners and fishers. 104. Haida witnesses testified about the hazards of navigation along the two proposed tanker routes arising from the unpredictable weather, extreme weather conditions, and factors contributing to extreme weather. ENG failed to take this information into account in its

93 Exhibit D42-6-2, AP 5 94 Exhibit D42-6-2, AP 16 95 Exhibit D42-6-2, AP 5 96 Exhibit D42-6-2, AP 5 97 Exhibit D42-6-2, AP 6 98 Transcript Volume 159 line 3800 99 Transcript Volume 156 line 31818; Exhibit B23-34 AP 58 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 21

risk analysis. This omission calls into question the credibility of ENG’s estimates for the return period of an oil spill.

The Northern Route 105. Oliver Bell gave the following oral evidence about this area: 2663. Lepas Bay is around the corner of Perry Pass.100 The force of the tide running through Perry Pass creates a back eddy into Lepas Bay. Any kind of disaster will wipe out that beautiful spot. 12664. Perry Pass is what separates Langara to the other island here, Graham Island and the tide roars through here, especially on a 24-foot tide running out. The back eddy will come in here and it'd be a disaster in here if any kind of oil slick happened.101 106. Giiwee (Learmonth Bank) is to the north of (K’iis Gwaii) Langara Island, between Langara and Alaska, in the centre of Siigee (Dixon Entrance). Oliver Bell gave the following oral evidence: 12650. Learmonth Bank is a shallow area north of Langara Island which can create huge swells after a westerly storm, creating dangerous overfalls and rips again. 12652. Learmonth Bank is …kind of halfway between here and Alaska -- Langara and Alaska -- and that’s where the shipping lane is, out in here. Out past where we were halibut fishing, that’s also in a shipping lane. We’ve seen huge ships passing through there. 12647. Rose Spit and Learmonth Bank are two of the most dangerous areas. Rose Spit is a sandbar that reaches into the Hecate Straits which creates a lot of turbulence. Travelling through this area can be terrifying in big tides. It’s where the shallow water meets the deep water, strong tiderips and heavy overfalls occur. 12654. It is windier in the winter months. We’ve already had over 90 knot winds twice this year. I have seen 50 knot winds, but my uncle has experienced winds over 80 knots crossing the Hecate Straits, on the same boat called “The Haida Brave”.102 107. Giiwee (Learmonth Bank) has been identified as a navigation hazard by the ENG: Learmonth Bank, with a least charted depth of 36 m, lies 40 km north of Langara Island in Dixon Entrance. During periods of inclement weather, swells and rough seas build up, causing the waves to become steeper and of shorter period over Learmonth Bank. The water depths over the bank are described as uneven and

100 This place name is spelled incorrectly in the transcript, correct spelling is Parry Pass. 101 Transcript Volume 22 102 Transcript Volume 22. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 22

the bottom comprises sand, rock and gravel (PAC 206). Mariners are cautioned about depths being possibly less than charted on Learmonth Bank due to the accuracy of the underwater surveys. Navigation directly over Learmonth Bank should be avoided by all of the proposed vessels. As an alternative, there is a deep-water channel to the south of Learmonth Bank, which is a minimum of 11.5 km wide between the 183 m charted bathymetric contours. The same channel has a minimum depth of 90 m over a width of 16.1 km. Also, there is a deep water channel to the north of Learmonth Bank which is 14.6 km wide between the 183 m contours.103 (See Figure 2-21)104 108. Giiwee (Learmonth Bank) is an area where Haida people fish for spring salmon, lingcod, halibut and rockfish.105 109. Roy Jones Sr. gave the evidence regarding his fishing experience around Haida Gwaii, Whales Channel and the Prince Rupert area. He gave the following evidence regarding the Kitimat area: 20636. I have navigated boats around Kitimat area, heading to Kitimat through the channel. At the mouth of the channel there are turns and if the steering on a ship goes haywire and makes – cannot make the turn, they can hit the shoreline before they’re able to stop.106 110. Randy Tennant provided the following evidence regarding the proposed route and Masset Inlet: 20872. Along the area of your proposed route, I don’t know how Transport Canada can justify that route. It’s not viable, I don’t think, in my experience. 20873. One thing you learn as a mariner is that you can’t get too cocky. I know I tried to fight the weather once. I was towing logs from – Massett Inlet. 20875. It’s the log inlet in the middle of the islands, and it’s surrounded by water there. That big – it looks like a lake in the middle of the island. I was towing logs from the start of that skinny part to the bottom, and a southeast wind came up out of nowhere. It was rising steadily, but I thought, okay, I can beat it. And out of nowhere, about 110 kilometre an hour wind came up.107 111. Allan Wilson provided the following evidence: 12984. And as you heard another of my cousins talking about the currents around Haida Gwaii, and they can be -- they won't be -- they can't be very friendly.

103 B23-6 AP 14 104 B23-6 AP 35 105 Exhibit 42-7-40 AP 43 106 Transcript Volume 30 107 Transcript Volume 30 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 23

They're so strong. They're so powerful. The tides come in, we know, at some spots at about eight knots. And in the inlet here, I know it goes up to maybe 12 plus. So the tides move rapidly and things get carried really quick.108 112. Malcolm Dunderdale also spoke about the northern route: 21475. As the proposed oil tankers come out of here, the back of Banks Island, and they transit north, you’ll see that there is very narrow channel here all the way up to Dundas Island. And even though it’s narrow, it’s quite deep. 21479. Even 80 feet is deep, so if ever they get caught out there in a hurricane force winds – and those big tankers act like sails. They have a really tough time staying in that narrow channel. And if ever they get blown into the rocks, well, we know what will happen. 21483. This area here is called Cape Shakan. Let me pointer right here; Cape Shakan. This is 54 40 degrees North, this is where the U.S. and Canadian border is, right across here. This is Duke Island.109 21484. Now, in and around this area right here is one of the world’s largest magnetic anomalies; magnetic anomaly being a magnetite which is an ore, a rock, which is the same that’s at the North Pole. 21485. And if you transit this area, and your electronics quit on your vessel all you have usually left is your chart and your compass to rely upon. Your compass is absolutely no good to you in this area. It will go round and round and round and round in circles and it will not allow to – especially at night time – not allow you to see the direction that you’re intending to go. So that’s one major problem there. 21486. The other problem of navigating this area – this is Lare Mouth110 Bank. This is facing northwest-southeast. This is right in the channel of the tanker route, and it is 12 miles long and 5 miles wide, and it’s fairly shallow. Just let me check my notes here and I’ll tell you the depth of it. 21487. Yeah, I think we’ll go to – we’ll keep it to feet rather than fathoms, I don’t want to confuse everybody with fathoms and metres and feet. We’re looking at 34.7 feet over the bottom, so – and below there is sand, rock and gravel. 21488. So it’s very shallow there, and if the winds are just howling, my concern is a very large tanker having a – having perhaps a problem trying to navigate around that. So that’s Lear Mouth Bank.

108 Transcript Volume 22 109 Place name is incorrect in transcript, should read Cape Chacon. 110 Place name is incorrect in transcript; should read Lear Month Bank. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 24

21510. One very recent incident that I’m sure some people here may know about – especially those from Massett – is that during the weekend, January 21-22 of 2012, a COSCO container ship sailed directly into storm force winds off B.C.’s north coast. The predictions were for wind speeds up to 130 kilometers an hour with sea heights of over 10 metres, over 30 feet. These precautions were issued on the Friday, the day before the incident, yet the container vessel, COSCO Yokohama, flagged in Liberia, sailed directly into it. 21511. The vessel, while in Dixon Entrance area, lost 29 containers overboard in the Dixon Entrance. The vessel was actually on its way from Asia to Prince Rupert, Prince Rupert port, and there was no or little chance of them being recovered, and many more containers on board shifted during the storm. I have actual photographs of that, too, which is interesting.111 113. Outbound tanker traffic from the proposed Kitimat terminal to Asian ports would use Dixon Entrance.112 ENG anticipates that Asia will be its primary market, with VLCCs being the primary tankers used to deliver diluted bitumen to Asian ports.113 There would therefore be an increase in both the volume of VLCC traffic in Dixon Entrance and the possibility of a spill involving diluted bitumen oil in Dixon Entrance. 114. A tanker incident at Giiwee (Learmonth Bank) would be devastating to the fragile ecosystems of Langara Island, the Duu Guusd Haida Protected Area, the Lepas Bay Ecological Reserve (No.93), and the Haida Protected Area jointly managed with British Columbia. 115. Lepas Bay is a 3 ha coastal seabird colony at the northwest tip of Graham Island.114 There is a rediscovery program at Lepas Bay where children are taught Haida culture, how to gather seafood and survival skills. They also have the use of canoes, kayaks and do a lot of hiking and playing on the sandy beaches. This program provided the model for other First Nations in BC and for indigenous peoples worldwide to develop similar programs. This beautiful spot is abundant with seafood.115 116. Across Perry Passage from Lepas Bay to the north is Langara Island, a popular destination for halibut, lingcod, shellfish and seaweed. The Haida have initiated an abalone recovery project near the island.116 117. The community and Aboriginal traditional knowledge set out above is based on personal observations and experience, or passed on from one generation to another through oral and/or written traditions. ENG failed to incorporate this valuable information in

111 Transcript Volume 31 112 Transcript Volume 159 lines 2878 to 2879 113 Transcript Volume 156 lines 32349 to 32354 114 Exhibit D42-4-25 AP 6 115 Transcript Volume 22 lines 12661-12664 116 Exhibit D42-6-4 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 25

assessing the risk of tanker traffic in the OWA which calls into question the credibility of ENG’s qualitative risk analysis.

The Southern Route 118. The Hecate Strait is named for its tempestuous nature and susceptibility to storms and violent weather. It is the fourth most dangerous body of water in the world because when the weather changes the waves builds quickly that they hit the shallow bottom of the sea and build upon themselves.117 Annual average winds speeds in Hecate Strait are 8.5 m per second.118 Most of Haida Gwaii has a large tidal range of 4 to 5 m, but the tidal wave is amplified in Hecate Strait and Skidegate Inlet so a large tidal range is 8 m.119 119. Roy Jones Sr. gave the following evidence regarding Hecate Strait in his oral evidence: 20632. High risk of oil spill because of weather; based on 60 some-odd years I spent on the water of Hecate Straits and the B.C. coast believe that risk of the oil spill will be great because of the weather. This was my workplace. 20633. The weather is very bad in Hecate Straits. Lots of parts of the Hecate Straits are shallow and when the wind blows the wind pushes the waves and it builds up faster than in deep water, and it will break. Seas are dangerous, and navigation is difficult in rough waters.120 120. Randy Tennant gave the following evidence regarding Hecate Strait: 20891. The Hecate Strait is so shallow that the sea states and the wind stack the waves up high. They’re high and short and they pound at you. It’s very dangerous. On the west coast there’s big rolls and when it hits the land it breaks. It’s huge.121 121. Malcolm Dunderdale gave the following evidence: 21466. Well, Madam Chair, this is – as you’ve heard before, Haida Gwaii is – Dixon Entrance, Hecate Straits is the fourth most dangerous place in the world when it comes to wind and waves. I can tell you for sure because I’ve been out there in 60-foot seas with my colleagues. And I see – as I looked around the room this morning, I see a few of my colleagues, search-and-rescue colleagues. So I want to talk a little bit about the weather. 21467. When Mother Nature comes slashing with her gale force and storm force and hurricane force winds, it is just tremendous, the seas that build, and especially in the Hecate Straits. You’ll find on Haida Gwaii when we have hurricane force winds, firstly, it’s no place to be out there in the ocean. If you’re on a vessel,

117 Transcript Volume 23, line 14553 118 Exhibit D42-4-41 AP 20 119 Exhibit D42-4-35 AP 6 120 Transcript Volume 30 121 Transcript Volume 30 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 26

chances are – on a small vessel, chances are in hurricane force winds you won’t come out of it alive. 21472. We also have, as mentioned earlier by John and others, that we have 24- foot tides. And when you get the tide right and the winds right and the fetch – fetch is, actually, a distance of uninhibited ocean; there’s no island in the way. Our fetch here at the north end of Hecate Strait is about 470 kilometres of open water that Mother Nature, with her hurricane force winds, builds upon.122 122. Allan Wilson provided the following evidence: 13020. I was telling you about the winds and the tides. The Hecate Strait is known as the fiercest water in the world. It can -- as my cousin Oliver said, it can change in a matter of minutes.

13021. I've been out there when it is flat calm, and then in a few minutes all you could see is waves as high as the top of this here. And you could see everything for a few seconds and then the next few seconds you'll see all is water in front of you and behind.123

123. John Disney provided the following evidence: 13768. Okay, let's talk about the Hecate Strait. The Hecate Strait is right slap bang in the middle of the tanker route. So I want -- I'm going to describe to you now what it's like to be in the Hecate Strait when it's blowing.

13769. So unless one has experienced the Hecate Strait in a storm, it is hard to imagine the degree of chaos that thrives there once circumstances come together and let loose their full fury. This is one of the world's roughest bodies of water because it is shallow, has fast-moving tides, and the topography of the surrounding land funnels and exaggerates the already vicious winds that are prevalent here.

13770. When a low moves in off the north Pacific accompanied by gale force winds, it will begin to intensify as the system compresses up against the mainland coast.

13771. Now if you look here we have the coastal mountains right here, and we have the Hecate Strait here and you'll notice that it's kind of vaguely funnel- shaped; the top gets narrower and narrower. So when lows come in -- as marine people we know that lows in the north-most hemisphere spin this way and you'll see that -- just like the red marker it gets forced up in here. So the wind is forced up in here, it starts getting compressed by these mountains, and as it goes further and further north the winds get horrific.

122 Transcript Volume 31 123 Transcript Volume 22 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 27

13772. The counter-clockwise spiraling winds fit nicely with the shape and the size of the Hecate which will funnel and further compress the winds to even greater velocity, which will often climb over hurricane force.

13773. Then in winter, when an Arctic front moves down into northern B.C. and Alberta, the extremely cold dense high elevation air comes up against the mountains and like mercury pours down these under the incoming layer and sets up winds that feed on themselves and also build in intensity.

13774. Now we have increasing inflow winds, in other words, the system I was talking about, coming up here and then the Arctic front coming down here and what happens is it's so dense and so cold it falls in under this warm moist air and it funnels down these inlets.

13775. It's a little hard to see, but there's an inlet here, inlet here. We've got Douglas Channel right -- coming down in here, which is one of the funnels.

13776. So now we have opposing very, very intense weather systems.

13782. Now we have increasing inflow winds meeting the cold katabatic outflow winds, both of which are now at hurricane force. Douglas Channel acts as a funnel for these winds. Everything meets in the Hecate Strait. With its shallow water and high tidal currents, we have an insane situation developing. All it takes is for the tide to change and then all bets are off. It is at these times that the coastal fleet had better not be in the Strait or they're not going home.

13783. I've experienced storms in my fishing career where we lost over 25 boats in a few hours and the associated loss of life. We had waves of over 30 metres and, even more dangerous, these aren't the offshore waves of long frequency, but very high piled up, very close to each other, like so many hundred-foot apartment buildings.

13784. The ferocity of this situation is unimaginable unless experienced firsthand. If you spend enough time on the water, these events will catch up to you once in a while.

13785. I have firsthand knowledge of surviving storm force winds which is only halfway up the scale, maybe 100 kilometres an hour. In those kind of winds having made it out of the Strait in safety, I found kelp, seaweed in my crosstree 40 feet above the deck, and I have sand on my deck from being in 70 feet of water. So that just shows it's like being put into a washing machine.

13786. Compasses don't work due to the pitching of the vessel, radars are useless, visibility is near zero and you run on luck and hope your remaining electronics don't fail. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 28

13787. Imagine 250 kilometre winds like the one we experienced in Halloween of 2010. Have you ever been in a community where they cancelled Halloween? In 2010, on Halloween night here we had winds that touched 250 kilometres an hour. Anyone in the Hecate Strait, no matter what, wouldn't have made it out of there.

13788. Since these tankers will be running by a different value system, the risk factor will rise sharply. I'm trying to imagine a 300,000 tonne vessel in that situation. And I know -- like we're being told that these are so heavy nothing affects them. I assure you it will, for two reasons; one, when waves like this start to lift a vessel like that it'll start its downward plunge, and this is based -- like we know this because we lived on boats.

13789. But the trouble is when you've got 300,000 tonnes going down and you're in shallow water, you got a problem. And the other thing is when you up around Hecate Strait here and around this end, we have these horrendous tides.

13790. And I've been running up Hecate Strait here, aiming at a point up the north here and I'm pointing 55 degrees, so my boat is pointing here and I'm travelling due north, flat out, and the reason my boat's pointing here is I'm trying to stay on track and that's because of the horrendous tides that are trying to push me on the beach. And then the trouble is if the tide turns, then suddenly everything is going the other way so you have to be extremely alert.

13791. And I'm trying to imagine a big vessel here -- like yesterday I flipped over a piece of paper and did the math. You'll have a 300,000 tonne force on the side of a -- on the side of a vessel that big by just the tide alone and then he's going to have to point off course to maintain course and then you suddenly pass a tiderip - - and I've been through this -- and suddenly now you're going -- you have to suddenly flip everything around.

13792. Well, I had the privilege of having a 40-foot boat which I can spin fast. I'm trying to paint a picture for you here to say they won't be able to. So just -- as long as you recognize that and Cape St-James, in my experience here, we've lost many boats, many of our friends, many of our Haida relatives been lost here in the same kind of tidal horror show. And this -- they can't get by Haida Gwaii without going through and experiencing one or the other.

13793. The other key factors, that if somebody could guarantee that these big boats would make it through there and survive, what happens if you do have a spill? When you got weather like that, it doesn't matter how many systems you have in place to go clean it up. There's no way that anybody can leave the dock anywhere to go deploy anything when you're basically operating in a washing machine. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 29

13794. You have no visibility. You have to understand this; you have no visibility because it's blowing so hard, there's so much saltwater and flotsam in the air you can't see anything, let alone try and deploy stuff.

13795. So anything happens -- if it makes it out of the Douglas Channel and get into the Strait, if anything happens there and they're going to be going on such a consistent basis, not tied to weather, anything, that they will run into these horrific situations. There's nothing anybody can do to help. So that very, very, very fast when you've got six or eight knot tides and the horrific winds, you're going to have oil spread from Alaska to Vancouver Island.124

124. Hecate Strait and Queen Charlotte Sound would be used by all tanker traffic, ballasted and laden, most likely with condensate as ENG expects Asia to be the primary export market, in which case, laden VLCCs would use the Dixon Entrance route. 125. The community and Aboriginal traditional knowledge set out above is based on local knowledge both historic and current. It is unanimous in the substantial risks involved in navigating heavy tankers in treacherous and unpredictable waters and weather conditions. There are no comparable conditions or scenarios in other waterways in the world by which to make a valid comparison of how loaded tankers could handle these waters and weather conditions. Measured against the real life circumstances in Dixon Entrance, Hecate Strait and Queen Charlotte Sound, ENG’s risk analysis should be viewed with great skepticism by the JRP.

3.7 Ports of Refuge 126. The Haida were not consulted about the ports of refuge, which Transport Canada has identified, or about the impacts of large ships harbouring in these areas. 127. Where a ship is in need of assistance and requests a place of refuge within Canadian waters, or where a ship is destined for Canada and has reported a problem (a defect, deficiency or a casualty), Transport Canada will identify the most suitable location based on a case by case basis. 128. Transport Canada’s Places of Refuge Contingency Plan (Pacific Region) confirms that there “are no pre-designation of places of refuge in the Pacific Region.”125 129. Nevertheless, McIntyre Bay has been identified by ENG as a possible emergency anchorage site for the project’s tankers approaching Triple Island pilot boarding station from Dixon Entrance.126 Anchorages are places where the anchor is dropped into the

124 Transcript Volume 23 125 E9-20-03 AP8 126 B23-24 AP37. McIntyre Bay is not identified in TERMPOL 3.5 and 3.12 report as a possible emergency anchorage site (B23-6 AP 88) COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 30

ocean floor,127 usually in the event of a mechanical failure, to allow for repairs to be made.128 130. The possibility of McIntyre Bay being used as an anchorage raises a number of concerns including the likelihood of the distressed vessel drifting into the coastline and spilling oil or other petroleum products into McIntyre Bay and its shoreline. As noted above, Dungeness crabs are found in McIntyre Bay and razor clams inhabit North Beach. As well, the shoreline is adjacent to key Haida areas: the Naikun Haida Protected Area (Naikoon Provincial Park), Rose Spit, and North Beach. In addition McIntyre Bay is the entry to Massett Inlet, the heartland of Haida Gwaii and Haida culture. 131. The Haida were not consulted about the use of McIntyre Bay as a possible emergency anchorage. In light of the traditional and local knowledge about substantial risks involved in navigating heavy tankers in treacherous and unpredictable waters and weather conditions, and risk to McIntyre Bay and its vicinity, this issue must be addressed by the Crown in direct consultation with and accommodation of the Haida before any decision is made regarding ports of refuge for the project.

3.8 Other Environmental Impacts 132. The Haida also emphasized grave concerns regarding invasive foreign species being transported into Haida Gwaii waters by shipping traffic carried by vectors such as ballast water or ship hills and the resulting impact upon the marine species of Haida Gwaii.

Aquatic Invasive Species 133. Notwithstanding the risks of a major spill, approval of this proposal would bring destructive forces to bear on some of the cleanest and richest marine areas on the planet through the introduction of foreign algae, jellyfish, marine plants and animals and toxins in the course of allowable ballast and bilge discharge. 134. The International Maritime Association (2007) has stated: “Invasive marine species are one of the four greatest threats to the world’s oceans! Unlike other forms of marine pollution, such as oil spills, where ameliorative action can be taken and from which the environment will eventually recover, the impacts of invasive marine species are most often irreversible!”129 135. As the colonization of invasive species can have significant impacts and be irreversible,130 the Haida take the position that the introduction of aquatic invasive species to the

127 Transcript Volume 157 line 897 128 Transcript Volume 157 line 908 129 2008 Status Report of the Commission of the Environment and Sustainable Development to the House of Commons – Chapter 6, Control of Aquatic Invasive Species 6.15 – 6.22. Office of the Auditor General of Canada (www.oag- bvg.gc.ca) See sidebar on page 7 of Chapter 6. 130 At the community hearing on February 28, 2012, Russ Jones gave evidence about six species of tunicates which have colonized Montague Bay in Prince Edward Island and irreversibly changed the entire ecosystem (Transcript Volume 22, lines 13220-13223) COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 31

marine ecosystems of Haida Gwaii and SGaan Kinghlas Bowie Seamount Protected Area (“SGaan Kinghlas”) from ballast water discharges or hull-fouling of tankers bound for the proposed Kitimat terminal is such a serious threat and has not been adequately assessed that this is a fundamental reason for the JRP not to approve the project.131 136. The Haida’s concern about invasive species is well-founded. According to a 2006 Parks Canada report filed by CHN as written evidence: • Haida Gwaii marine waters “now host at least one plant, 14 invertebrates, and two fish species introduced since the early 20th century”; • the European green crab, an aggressive predator of intertidal invertebrates, have been recorded from the northwest coast of Vancouver Island and its potential spread to Haida Gwaii and Gwaii Haanas “must be taken seriously”; • introduced species are acknowledged globally as the “second greatest threat to all biodiversity after habitat loss”; and • the major source of introductions are from “overseas ships’ ballast water releases” and, as 90% of world trade is ship-borne, the “scale of the threat is immense”. 137. This problem is especially acute for the Haida because federal regulations permit foreign vessels to exchange ballast water within 45 nautical miles of Haida Gwaii and 50 nautical miles of SGaan Kinghlas if the master of the vessel decides that it would be unsafe to conduct the exchange at the regular 200 nautical mile limit.132 138. CHN was not consulted about the establishment of these alternate exchange zones which permit the discharge of ballast water 150 to 155 nautical miles closer than what is obviously considered to be the safe distance away. 139. Transport Canada’s representative testified at the hearings on April 25, 2013, that, as part of the establishment of the alternative exchange zones, DFO had looked at the oceanographic features relating to Haida Gwaii and SGaan Kinghlas water areas, conducted studies, and determined that the alternate exchange zones offered as much protection as the 200 nautical mile zone. CHN was not consulted about or provided with a copy of these studies. 140. CHN submitted an information request to DFO to find out to what extent, if any, DFO had considered the impact of the increased level of ballast water discharges from the project’s tankers on the marine ecosystems of Haida Gwaii and SGaan Kinghlas. In its response, DFO advised as follows:

131 Haida witnesses identified this concern at the community hearings (Transcript Volume 22 lines 13217-19, 13224; Transcript Volume 30 lines 20201, 20210, 20635) and CHN’s Strategic Marine Use Plan lists introduced species from ballast water as a threat to the marine ecosystem around Haida Gwaii (D42-6-15 AP 8) 132 Ballast Water Control and Management Regulations, SOR/2011-237, subsections 6(2), (4) and (5) COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 32

• commercial shipping has been identified as an important vector for the introduction and spread of five species of tunicates and two crab species, however, a priority list of potential high risk aquatic invasive species for BC has not been developed; 133 • while DFO had conducted a larger scale biological risk assessment that included the waters surrounding Haida Gwaii, a risk assessment had not been completed for specific marine waters at smaller spatial resolutions, such as Marine Protected Areas; 134 • while socio-economic assessments are being conducted on a pilot basis across the country, none are being done for Haida Gwaii or the SGaan Kinghlas;135 • while DFO’s Science Branch has completed a science-based framework for rapid response to aquatic invasive species in Canada, to date, no specific rapid response plans have been developed for Pacific waters, including Haida Gwaii and SGaan Kinghlas Bowie Seamount;136 and • currently, there are no active early detection networks in Haida Gwaii and SGaan Kinghlas.137 141. DFO’s response makes it abundantly clear that it has not considered the potential for the project to increase the risk of invasive species introduction to Haida Gwaii and SGaan Kinghlas, and DFO made no assurances that it would do so in the future. Moreover, DFO did not take this opportunity to provide a copy of the studies adverted to above. 142. In response to an information request from the Gitga’at First Nation, the proponent described a number of case studies to illustrate how the colonization of ship-borne invasive species may affect ecological conditions and marine-based cultural and economic pursuits in the CCAA and OWA. In particular, the proponent noted that the green crab had invaded BC, raising the “concern that it may compete or displace economically important species such as Dungeness crab”; that there is anecdotal evidence from Newfoundland and the Gulf of Saint Lawrence suggesting that “green crabs could be displacing native Cancer crabs, and reducing shoot density in eelgrass beds”; and that it is “unclear whether green crabs could colonize the cold waters of northern BC” as “cold water in Newfoundland is cited for impeding the green crab from expanding its range farther north in Atlantic Canada”.138 143. The Dungeness crab fishery on the coast of Haida Gwaii is a significant one both commercially and as a traditional food staple for the Haida. The uncertainty regarding

133 E9-21-11 AP5 134 E9-21-11 AP5 135 E9-21-11 AP5 136 E9-21-11 AP6. This is a main component of many invasive species management programs being developed worldwide including Australia, New Zealand and USA 137 E9-21-11 AP6 138 B45-6 AP 16 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 33

the potential effects of a green crab invasion highlights the danger if other foreign species were to be introduced into the marine ecosystems of Haida Gwaii and SGaan Kinghlas from the ballast water or hull-fouling of the project’s tankers. 144. CHN understands that the federal government is contemplating requiring foreign vessels to treat the ballast water on board the vessels before exchanging the water at sea.139 Such an initiative may address CHN’s concerns if the treatment is proven to be effective, if the treatment is proven not to adversely affect local marine species, and if the initiative is implemented. CHN has not been consulted about this initiative. 145. The proponent did not assess the potential impacts of the project on SGaan Kinghlas on the basis that it is located outside the project area and beyond the scope of the proponent’s assessment requirement.140 CHN therefore concludes that the Haida’s concern about the introduction of ship-borne foreign species by the project’s tankers is beyond the scope of the JRP proceedings and must be addressed by the federal government in direct consultation with and accommodation of the Haida before any decision is made regarding the project.141 146. CHN understands that there are no regulatory initiatives in Canada to reduce species transfers via hull- fouling.142 This is a risk from the project’s operations that has not been addressed by the proponent or the federal government. It therefore remains outstanding. 147. Studies have shown that hull fouling can be as important a vector for invasive species as ballast water.143 The risks associated with hull-fouling remain mostly unquantified in Canada. Other potential vectors for invasive species associated with shipping are resting stages of organisms in residual ballast and ballast sediments. There has been little work to quantify this risk in Canadian and Pacific waters. 148. Canada is implementing the IMO convention on ballast water but does not propose any dates as to when ballast water treatment will be implemented. 149. Currently the ballast water inspection and monitoring program is not transparent and data is not readily available. 150. It is a major omission to fail to properly study the impact of invasive species on Haida Gwaii. The Haida are reliant on indigenous species for their economic and cultural well- being. The depletion or eradication of the indigenous species would be devastating for

139 E9-6-15 AP 30 140 Transcript Volume 149 lines 22756-22759, 22765-22766 141 The Chair discouraged counsel for the Haisla Nation from asking the proponent questions about ballast water exchange areas in open seawater on the basis that the topic did not relate directly to the proponent’s application (Transcript Volume 162 line 7152). This supports CHN’s conclusion that its concern is beyond the scope of the JRP proceedings. 142 B45-6 AP 13 143 See for example Ruiz, G.M., P.W. Fofonoff, J.T. Carlton, M.J. Wonham and A.H. Hines. 2000. Invasion of coastal marine communities in North America: apparent patterns, processes, and biases. Annual Review of Ecology and Systematics 31, 481-531. Cited by Environment Canada in E9-21-11. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 34

the Haida way of life. This impact was inadequately studied by ENG as well. The materials before the JRP do not provide a base or reliable knowledge that would permit a decision to be made that there is no reasonable risk from invasive species.

PART VI: HAIDA ABORIGINAL RIGHTS AND THE CROWN’S DUTY TO THE HAIDA NATION

151. ENG did not consider the impact upon Haida Aboriginal Rights , including: • The existence of Haida Aboriginal Rights throughout Haida Gwaii, as evidenced by Haida laws and oral histories, the nature and extent of resources harvested; long- standing exclusive Haida occupation of the land and marine waterways , and publicly known evidence of Haida stewardship of the land and sea and Haida litigation. • The exercise of Aboriginal Rights and Title, including stewardship and responsibilities to take care of the land and sea, the right to choose how lands and resources are used, which the Haida have achieved through land and marine planning activities and co-management agreements. 152. This failure to consider the impacts upon Haida Aboriginal Rights and the failure to incorporate the evidence the Haida filed regarding Haida Aboriginal Rights renders the ENG application incomplete and does not allow the Panel to reasonably assess the impacts to Haida Gwaii and the Haida people.

A. HAIDA ABORIGINAL RIGHTS AND TITLE 153. In Delgamuukw v. British Columbia (“Delgamuukw”), the Supreme Court of Canada identified a spectrum of rights.144 At one end of the spectrum is Aboriginal Title, which is a right to the land itself and the resources of the land. At the other end of the spectrum are Aboriginal rights where no title is claimed or proven. 154. Aboriginal Title confers a right to exclusive use and occupation of land for a variety of activities, and a right to choose to what ends a piece of land can be put.145 Aboriginal Title also includes an “inescapable economic component”146 but is subject to an inherent limit,147 meaning that the lands cannot be used in a way that impairs its utility for use by future generations. 155. The Haida position is that the marine portion of Haida Territory is subject to Haida Aboriginal Title, including the right to choose how Haida marine spaces can be used and

144 Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010, (“Delgamuukw”), para. 138. 145 Delgamuukw, paras. 166-168. 146 Delgamuukw, paras. 166 and 169. 147 Delgamuukw, paras. 125-128. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 35

the right to share in the economic benefits from marine spaces, subject to the inherent limit. 1. Evidence of Haida Aboriginal Rights and Title 156. Haida Gwaii is “archaeologically rich”, revealing over 12,000 years of human occupation.148 The Gwaii Haanas area alone contains over 600 coastal archaeological sites, many of which are of great importance culturally and spiritually to the Haida.149 In addition, Haida Gwaii contains many ancient villages which are not contained in ENG’s application and updates. 157. The Haida hold Title to the lands and waters of Haida Gwaii and have done so for over 10,000 years. The Haida have exercised and continue to exercise Aboriginal Rights to the resources on the land and in the sea. There is on-going litigation with Canada and British Columbia with respect to the jurisdiction and management of Haida Gwaii and the surrounding waters. 158. Haida witnesses presented the following evidence regarding archaeological evidence on Haida Gwaii: a. Xiihliikingang, April Churchill stated that archaeology is a contemporary science that is evidencing ancient Haida occupation and continued Haida occupation of Haida Gwaii, which also is verifying Haida oral history.150 b. Guskin, Allan Davidson, described his experience working on excavations on Haida Gwaii as an archaeologist, noting the sites he has worked on as between 600 and 10,700 years old. He excavated a site on Richardson Island with over 100 cultural layers dating back 10,700 years. He spoke of working on an intertidal site, Kiilgii Gwaay, dating back 10, 700 where a basket was found and a cave site called Gaduu Din, where stone tools were found dated to 12, 700 years old. He also spoke of Rose Spit, 600 years old, where fish bones, clam shells and shellfish remains were found.151 159. The Haida witnesses shared evidence regarding Haida Aboriginal Rights and Title over the lands and resources of Haida Gwaii, including the following evidence about the nature and scope of Haida Aboriginal Rights. a. Guujaaw confirmed that the Haida have Aboriginal Title and Rights over the land and marine areas of Haida Gwaii and have not signed a treaty; the process of reconciliation with BC and Canada; the agreement with the government of British Columbia to set aside lands and shoreline to protect Haida culture; the history of

148 Government of Canada and Council of the Haida Nation: The Gwaii Haanas National Marine Conservation Area Reserve and Haida Heritage Site: Interim Management Plan and Zoning Plan (“GHNMCA Interim Plan”), May 2010, 2.3, section 2.3, AP 9, available at: http://www.pc.gc.ca/pn-np/bc/gwaiihaanas/plan/plan1.aspx 149 GHNMCA Interim Plan, section 2.3, AP 9. See also Exhibit D42-7-26, Table 16.1, AP3 of Haida Gwaii Human History and Environment Part 23 and Figure 16.1, AP5. 150 Transcript Volume 30 line 20184. 151 Transcript Volume 22 lines 12713-12725 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 36

joint management of forestry and logging; the fact that the Haida are engaged in active Aboriginal Title litigation; Gwaii Haanas/joint management and marine component; SGaan Kinghlas agreement.152 b. GusKin, Allan Davidson spoke about traditional teachings from his grandparents; archaeology in Haida Gwaii including at the 10,700 year-old Richardson Island site, Kiilgii Gwaay which is located in the intertidal zone; Gaduu Din which is 12,000 years old; and Rose Spit, 600 years old.153 c. Nang Jingwas Russ Jones, Hereditary Chief of the Naa S’aagaas Xaaydagaay, spoke about the Haida history of marine use planning with Canada; Haida place names on Haida Gwaii; the Gwaii Haanas marine area Interim Management Plan with CHN/Canada; heritage management plans with CHN/BC; and the CHN/DFO management plan for SGaan Kinghlas.154 d. Xiihliikingang, April Churchill spoke about the Haida Nation’s Constitution; the social structure of the Haida; the history of Haida occupation of Haida Gwaii; Haida values of balance, interconnectedness, sustainability, care and respect; the Haida peoples’ connection with Haida Gwaii; the on-island protocol table to discuss concerns from non-Haida communities; the Land Use Plan and Kunst’a guu – Kunst’aayah Reconciliation Protocol Agreement; and the Land Use Planning map.155 e. Kilslaay Kaajii Sding, Miles Richardson spoke about Haida governance; contact and impacts of colonization; the Reserve Commission and the history of Haida protests; Haida Title; the Allied Tribes of BC’s 1924 trip to Ottawa petition for Aboriginal Title; the history of the CHN; the Haida Nation’s successful opposition to offshore drilling and gas; the history of protection of Gwaii Haanas; the Land Use Plan; the history of Duu Guusd Tribal Park, and the reconciliation history with Canada.156 f. Gaagwiis, Jason Alsop shared knowledge about the exercise of Aboriginal rights through the Archipelago Management Board and the SGaan Kinghlas (Bowie Seamount) Management Board.157 160. The ENG application is silent regarding the potential impacts on Haida Aboriginal Rights and Title. 161. Through the thousands of years of Haida occupation of Haida Gwaii, the evidence shows that Haida people have been provided for and relied upon the rich and abundant

152 Transcript Volume 22 lines 12386-12387 and lines 12412-12415; lines 12388-12390; lines 12417-12420. 153 Transcript Volume 22 lines 12694, 12696, 12699-12700; lines 12712-12714; lines 12718-12720; 12724 and 12725 respectively. 154 Transcript Volume 22 line 13107; lines 13112-13116; and lines 13127-13132 respectively. 155 Transcript Volume 30 line 20168; lines 20183-20187; lines 20191-20193; line 20211; line 20213; and lines 20220- 20222 respectively. 156 Transcript Volume 30 lines 20264-20266; lines 20269-20276; line 20279; lines 20284-20286; and lines 20289-20292 respectively. 157 Transcript Volume 30 lines 20350-20374. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 37

oceans that surround us. In more recent history, our people and many others near and abroad have continued to enjoy what the natural world has provided. Our expectation and responsibility is to ensure that the lands and waters are passed on in good condition. The ENG proposal puts all of that at risk.

2. Haida Aboriginal Rights to Manage and the Inherent Limit 162. Aboriginal law in Canada is focussed on reconciliation of the prior occupation of the land by Aboriginal Peoples with the assertion of Crown sovereignty. The fundamental objective of Aboriginal law is the “reconciliation of aboriginal peoples and non- aboriginal peoples and their respective claims, interests and ambitions.”158 163. In 2004, in the Haida TFL 39 case, the Supreme Court of Canada159 confirmed the strength of Haida Aboriginal Title and Rights and directed that the governments were obligated under law to consult and accommodate Haida interests prior to an ultimate determination of Haida Aboriginal Rights. There have been extensive negotiations, also on-going, with respect to the management and preservation, of land and resources on Haida Gwaii. Large tracts of land and marine areas are protected by agreement and are managed jointly. 164. The co-management activities in relation to the Gwaii Haanas Marine Agreement and SGaan Kinghlaas MOU with Canada, and the protected areas (including near and foreshore areas) with British Columbia are an exercise of Aboriginal Rights and Title and the right to manage (the right to choose how lands and resources are used). 165. The Haida have deliberately chosen to develop integrated management approaches to foster cultural and socio-economic opportunities which enhance collaboration and cooperation with Canada and British Columbia. 166. An oil spill puts at risk the underlying Aboriginal Rights, as well approval of the ENG project would also undermine the management partnerships and the progress of reconciling Haida and Crown Title.

2.1 Gwaii Haanas 167. The southern route is runs adjacent to the Gwaii Haanas Haida Heritage Site (the Gwaii Haanas National Park Reserve) (“Gwaii Haanas”) and the Gwaii Haanas National Marine Conservation Reserve. 168. Gwaii Haanas is co-managed by the Government of Canada and the Haida Nation through an Archipelago Management Board.

158 Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, para. 1. 159 Haida Nation, supra COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 38

169. There are many ancient Haida villages contained in the Gwaii Haanas area, which are publicly known and visited by people from all over the world.160 These ancient villages are under the joint management of the Gwaii Haanas Archipelago Management Board. 170. The Haida Nation and the Government of Canada have identified the Gwaii Haanas area as an important area for terrestrial and marine protection. Canada and the Haida Nation indicated their joint intention to create the Gwaii Haanas Marine Area in 1988 in the South Moresby Agreement. Their intention was reiterated in 1993 in the Gwaii Haanas Agreement – as set out below: 1.2 The Council of the Haida Nation has designated the lands and waters in the Gwaii Haanas area of Haida Gwaii as a Haida Heritage Site, as shown on the map in Appendix 1. 2.6 The Government of Canada also intends to designate certain waters in the South Moresby area as a reserve for a National Marine Park within the area shown on the map in Appendix 3, and this latter area is referred to herein as "the Archipelago Marine Area” 171. This protection has been in place since 1985 (for the Haida Nation) and 1988 (the Government of Canada). When the Parties jointly agreed to create the Gwaii Haanas National Park Reserve, they also indicated their intention to protect a marine component.161 172. The Haida Nation and the Government of Canada agreed to the Gwaii Haanas Marine Agreement in 2010.162 The area under the Gwaii Haanas Marine Agreement encompasses marine areas in the southern half of the Haida Territory as shown in the map attached to the 2010 Gwaii Haanas Marine Agreement, and also (generally) in the map attached to the 1993 Gwaii Haanas Agreement.163 173. The Gwaii Haanas Marine Area is known as “one of the world’s ecological and cultural treasures”. The vision for the management of the Gwaii Haanas Marine Agreement (from the GHMAR Interim Management Plan and Zoning Plan):164 The Gwaii Haanas marine area is known as one of the world’s ecological and cultural treasures, where there are endless opportunities to learn about and experience the seamless connection of the sea, land and people. Co-operatively managed by the Council of the Haida Nation and the Government of Canada, Gwaii Haanas is a recognized leader in integrated and adaptive management, ensuring that protection, conservation and sustainable use opportunities are mutually achieved.

160 Exhibit D42-6-11 (Gwaii Haanas Agreement), Appendix 1 (AP 7) – Map of the Gwaii Haanas Agreement indicating Haida Heritage sites. 161 This history is contained in the GHNMCA Interim Plan, AP 7 and AP11-12. 162 Available publicly at: http://www.pc.gc.ca/pn-np/bc/gwaiihaanas/plan/plan1.aspx 163 Exhibit D42-6-11 (Gwaii Haanas Agreement), Appendix 1 (AP 7). 164 Available at: http://www.pc.gc.ca/pn-np/bc/gwaiihaanas/plan/plan1.aspx) COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 39

Managed with innovation and foresight, the natural beauty and rich biodiversity of Gwaii Haanas exists for future generations. Ensuring the long-term health of this unique marine environment has contributed to the social, cultural and economic well-being of island communities. The natural magnificence of Gwaii Haanas and its rich, living Haida culture provides exceptional learning and enjoyment opportunities for visitors and reaffirms our place in the ecosystem. 174. Gwaii Haanas “is the first area in the world formally managed from the mountain tops to the sea floor” (nearly 5000 km2 of land and ocean)165. This is a rare and significant achievement nationally and globally. 175. The Gwaii Haanas Marine Area “supports some of the most abundant and diverse marine communities found in temperate waters worldwide. Nearly 3,500 marine species (including species-at-risk) have been identified around Haida Gwaii, and this number will grow greatly as our maritime understanding improves. This biodiversity has long supported the Haida’s traditional harvest of marine resources, various commercial and recreational and coastal communities”.166 176. Under the Gwaii Haanas Marine Agreement, Canada and the Haida Nation have agreed to jointly manage the marine resources to meet ecologically and culturally important objectives: Whereas the Government of Canada and the Council of the Haida Nation have a common desire that the Gwaii Haanas Marine Area shall be regarded with the highest degree of respect and will be managed in an ecologically sustainable manner that meets the needs of present and future generations, without compromising the structure and function of the ecosystem. 2.2 The Parties wish to affirm that in the planning, operation, management and use of the Gwaii Haanas Marine Area they share the following objectives: a) to maintain and restore healthy and productive ecosystems within the Gwaii Haanas Marine Area and conduct all activities and programs in a manner that considers and respect this objective; b) to contribute to a benchmark for science and human understanding of the marine environment by supporting and providing opportunities for research and monitoring; c) to maintain the continuity of Haida culture, including traditional renewable resource harvesting and the protection of sites of special spiritual-cultural significance to the Haida; d) to provide for continued ecologically sustainable use of the marine resources that considers the economic well-being of coastal communities; and e) to promote an understanding and appreciation of the marine environment, and provide opportunities for visitor experience, education and awareness.

165 See: http://www.pc.gc.ca/pn-np/bc/gwaiihaanas/plan/Plan4.aspx; see also, the Interim Management Plan. 166 GHNMCA Interim Plan, section 2.2, AP 9. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 40

177. To achieve these objectives, Canada and the Haida have agreed to expand the role of the Archipelago Management Board to include co-management with not only Parks Canada, but also Fisheries and Oceans Canada, and development of close working partnerships with Transport Canada.167 178. Canada and the Haida Nation have completed an Interim Management Plan which identifies management priorities, principles, and objectives and describes the joint management process.168 179. About 14% of the Gwaii Haanas marine boundary is designated as a Rockfish Conservation Area, to protect a variety of rockfish species and rockfish habitat.169 In addition, there are numerous closures and study sites within the Gwaii Haanas marine boundary170 and other marine areas that are candidates to be fully protected and designated in the final Gwaii Haanas Management Plan.171 180. The Gwaii Haanas Haida Heritage Site and National Marine Conservation Area Reserve is the only Marine Conservation Area Reserve in Canada. Reserves are established for areas that are subject to an Aboriginal Rights claim that has been accepted by Canada for negotiation.172 181. A key underpinning of this management partnership is the objective of sustaining Haida culture. 182. The ENG project should not be allowed to pre-empt or override the management plans and agreements in place regarding Gwaii Haanas. If the project is approved, all of the reconciliation progress, joint management arrangements and marine plans are put at risk by an oil spill that could irreversibly change the ecosystem of Gwaii Haanas. 183. ENG did not take into account the impact that an oil spill would have on the coastal and marine areas protected and co-managed under the Gwaii Haanas Marine Agreement.

2.2 SGaan Kinghlas / Bowie-Hodgkins-Davidson Seamount Chain 184. SGaan Kinghlas is located on the northwestern portion of the Haida Territory, about 180 km west of the coast of Haida Gwaii. 185. SGaan Kinghlas is an underwater mountain formed by volcanic activity which results in unique oceanographic interactions that enhance the biological productivity of the area. 186. SGaan Kinghlas is home to unusually high densities of marine species in the north Pacific, all supported by a relatively rare and very productive habitat.

167 GHNMCA Interim Plan, section 2.2, AP 13. 168 GHNMCA Interim Plan, which is found at: http://www.pc.gc.ca/pn-np/bc/gwaiihaanas/plan/plan1.aspx 169 GHNMCA Interim Plan, section 2.2, AP 13. 170 See Appendix B of the GHNMCA Interim Plan, section 2.2, AP 29. 171 See Appendix B of the GHNMCA Interim Plan, section 2.2, AP 27. 172 Canada National Marine Conservation Areas Act, S.C. 2002, c. 18, s. 4(2). COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 41

187. The Haida Nation designated SGaan Kinghlas as a Haida Protected Area.173 188. The SGaan Kinghlas is also a Marine Protected Area under Canada’s Oceans Act – established to protect and conserve important fish and marine habitats, endangered marine specifies, unique features, and areas of high biological productivity or biodiversity.174 189. SGaan Kinghlas is one of two federally-designated marine protected areas on the Pacific Coast. 190. The governments of Canada and the Haida Nation entered into an MOU agreement to jointly manage this unique area.175 This agreement was signed in 2007, three years before the ENG application. 191. ENG did not consider the impact that an oil spill would have on SGaan Kinghlas, nor consulted with the SGaan Kinghlas Management Board in relation to marine use planning activities. 192. In fact, ENG admitted that it did not have any obligation to consider SGaan Kinghlas, because it is beyond the waters that Canada considers to be its territorial sea.176 193. SGaan Kinghlas, however, is within the Exclusive Economic Zone that Canada claims, and Canada has regulations (Bowie Seamount Marine Protected Area Regulations) that apply to the area. 194. ENG has an obligation to consider the impacts of the proposed project on SGaan Kinghlas and this duty has not been fulfilled.

2.3 Joint Management with BC 195. The Haida Nation and the Province of BC are jointly managing nearly half the total land base of Haida Gwaii (and almost the entire land base outside of the Gwaii Haanas area).177 196. The Haida Nation and the Government of BC have also agreed to jointly manage a large portion of the near and foreshore areas of Haida Gwaii designated as a result of the Strategic Land Use Agreement,178 which comprises 72% of the coastline of Haida Gwaii. The boundaries for the marine areas were established to protect rare/sensitive marine

173 Exhibit D42-6-3: Bowie Seamount Agreement (2007), third recital 174 Oceans Act, S.C. 1996, c. 31. 175 Exhibit D42-6-3: Bowie Seamount Agreement (2007), fifth recital. 176 Transcript Volume 149 line 22756: Mr Jeffrey Green stated: “I’ll just point out that the scope of the assessment is the 12-mile territorial waters of Canada and we’re now talking about an area that’s substantially outside that zone.” 177 See the Haida Gwaii Strategic Land Use Agreement – September 2007 (Exhibit D42-6-12). A map of these areas is (excluding the marine portions) is found at: (excl. marine areas): http://www.haidanation.ca/Pages/Splash/Documents/culturalsites.pdf 178 Ex. D42-6-15: Council of the Haida Nation Marine Strategic Plan COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 42

ecosystems (such as eelgrass beds, estuaries and seabird foraging grounds) or important areas for Haida Gwaii cultural use.179 197. Ecological and cultural considerations are paramount to decisions regarding management and tenure allocation in the marine areas. 198. The marine components of these protected areas are also anticipated to receive higher levels of protection through ongoing marine planning processes that the Haida Nation is engaged in with BC and Canada. 199. ENG did not consider the impact that an oil spill would have on the protected areas that the governments of BC and the Haida Nation jointly manage. 200. This management is part of an “incremental step” in the process of reconciliation of Haida Gwaii.180 It is intended to create a more productive relationship and a more respectful approach to co-existence by way of land and natural resource management on Haida Gwaii through a joint decision making process. 201. ENG did not take into account the impact that an oil spill would have on the coastal and marine areas protected and co-managed with British Columbia.

2.4 Marine Use Planning 202. In addition to existing protected areas such as Gwaii Haanas, SGaan Kinghlas and CHN- BC Protected Areas the CHN is involved in two processes to develop marine use plans for Haida Gwaii waters with Canada and BC. These are the Pacific North Coast Integrated Management Area (PNCIMA) and Haida Gwaii Marine Use Planning as described below. 203. The Haida Nation began marine use planning with the HMTK Study, and the creation of “Towards a Marine Use Plan for Haida Gwaii” in 2007.181 The Haida Nation engaged in communications and dialogue, including the Gaaysiigang forum.182PNCIMA stretches from the Alaska border to northern Vancouver Island and as far west as the base of the continental shelf slope. 183 PNCIMA is one of five Large Ocean Management Areas (LOMA) identified in Canada’s 2005 Ocean’s Action Plan. The PNCIMA plan is intended to provide direction and a commitment to integrated, ecosystem-based and adaptive management for marine activities and resources in the region. 204. Partners in the PNCIMA plan include the CHN and other Coastal First Nations, the Federal government (led by Fisheries and Oceans Canada, DFO), and the Province of

179 See: http://www.haidanation.ca/Pages/Programs/Land_Use.../protecareaplan.pdf 180 See generally, the BC-Haida Kunst’aa Guu-Kunst’aayah Reconciliation Protocol Agreement, found at: http://www.gov.bc.ca/arr/firstnation/haida_nation/default.html or http://www.haidanation.ca/, and specifically, recital B. 181 Exhibit D42-6-26; D42-6-15 182 Exhibit D42-6-7 to D42-6-8 183 Lucas, B.G., Verrin, S., and Brown, R. (Editors). 2007. Ecosystem overview: Pacific North Coast Integrated Management Area (PNCIMA). Can. Tech. Rep. Fish. Aquat. Sci. 2667: xiii + 104 p. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 43

BC. A 2008 Memorandum of Understanding on PNCIMA Collaborative Oceans Governance184 (with 2010 and 2011 addendums)185 commits the partners to a governance model that includes a joint Steering Committee and Planning Office.186 In addition a 2012 Letter of Intent was signed relating to re-engagement of the First Nations (including CHN) in PNCIMA. DFO’s role is guided by the Oceans Act which commits DFO to a process to develop integrated marine use plans.187 205. The draft PNCIMA plan is a high level strategic plan and a draft was recently released for public consultation. The draft plan has two key components: A framework for Ecosystem Based Management including assumptions, principles, goals, objectives and strategies; and implementation priorities that include governance arrangements for implementation, Marine Protected Area Network planning, monitoring and adaptive management, integrated economic opportunities and tools to support plan implementation.188 206. The Haida Gwaii Marine Use Plan is being developed by CHN and BC through the Marine Planning Partnership (MaPP) which is a partnership between the Province of British Columbia and 20 member First Nations as represented by Coastal First Nations- Great Bear Initiative, the North-Coast – Skeena First Nations Stewardship Society and the Nanwakolas Council.189 207. The intent of the MaPP initiative is to create new coastal and marine plans for the North Coast, the Central Coast, North Vancouver Island and Haida Gwaii. MaPP will bring together the best available science, traditional knowledge and input from public and stakeholder engagement. The resulting plans will contribute to a healthy marine environment and sustainable economies for B.C. coastal communities including Haida Gwaii. 190 208. The Haida Gwaii Marine Use Plan and the existing protected areas identified earlier are expected to contribute to a marine protected area network for PNCIMA (as identified in the draft PNCIMA plan) and Haida Gwaii. A National Framework for Canada’s Network of

184 Ex. D42-6-46: Memorandum of Understanding on PNCIMA 185 Ex. D42-6-49: Addendum to the Memorandum of Understanding 186 [online] URL. http://www.pncima.org/site/document-library/pncima-publications.html 187 The re-engagement was necessary as DFO unilaterally and completely re-scoped PNCIMA to remove spatial planning for Haida Gwaii and the central-north coast and to produce instead only a high-level strategic plan. Haisla Nation cross-examined ENG about lobbying Canada to withdraw spatial planning from PNCIMA. Transcript Volume 153 lines 28131-28216. 188 The draft PNCIMA plan was publicly released on May 27, 2013. See: http://www.pncima.org/site/get- involved/public-review.html. 189 See: http://mappocean.org/. 190 Ibid. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 44

Marine Protected Areas commits to establishing a network of MPAs by 2020.191 Initial commitments were to establish this network by 2012 (DFO 2005).192 209. Partners are working together through a 2011 Letter of Intent that establishes the Marine Planning Partnership (MaPP).193 The Kunst’aa Guu Kunst’aayah Reconciliation Protocol provides a supporting decision-making structure for CHN and BC. The Council of the Haida Nation is guided by the KaayGuu Ga ga Kyah ts’as – Gin ‘inaas ‘laas ‘waadluwaan gud tl’a gud giidaa (Stewardship Law) and Haida Gwaii Yah’guudang and the principles outlined in the Haida Land Use Vision. On Haida Gwaii, provincial involvement is guided by the Haida Gwaii Reconciliation Act and BC Parks Act. 210. The draft Haida Gwaii marine use plan is now near completion and will be presented to communities and other stakeholder groups in the fall with the plan being finalized by December 2013. Additional consultations will be needed to implement plans because of the lack of Federal involvement. 211. Haida participation in these processes is setting the foundation for better knowledge of the marine ecosystems and better management. The Haida Nation has prioritized marine use planning given the importance of the marine ecosystems and marine species and its contribution to Haida culture, way of life and the fostering of marine economic activities. 212. Any marine projects, including the NGP, must ensure that the planned activities are not incompatible with marine use plans and further, must be constrained by marine use plans. The NGP has not considered any marine use planning processes, nor the Haida Marine Use Plan. 213. The Haida have been active in litigation, co-management and reconciliation agreements so that both the nature of Haida assertions of Aboriginal Rights and Title and the strength of the Haida prima facie case of Aboriginal Rights and Title is part of the public record and readily accessible to ENG, yet ENG did not consider the impact to Haida Rights and Title. ENG did not consider the impact that an oil spill will have on the protected areas, or the inherent limit of Haida Aboriginal Title.

B. CROWN’S CONSULTATION OBLIGATIONS TO THE HAIDA HAS NOT BEEN FULFILLED 214. Canada’s Aboriginal Consultation Framework for the NGP provides that Canada will reply upon the JRP process (“to the extent possible”) to assist with meeting its

191 [online] URL. http://www.dfo-mpo.gc.ca/oceans/publications/dmpaf-eczpm/docs/framework-cadre2011-eng.pdf 192 [online] URL. http://www.pncima.org/site/document-library/related-federal-policy-and-legislation.html 193 [online] URL. http://mappocean.org/wp-content/uploads/2012/02/LOI_Completed_Nov_28_2011-signatures- removed.pdf COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 45

consultation obligations and that it will be the primary mechanism for Aboriginal consultation in a “coordinated manner” and a “whole of government approach”.194 215. By relying on the JRP process, Canada has tried to side-step its obligations to the Haida to engage in meaningful consultation and accommodation in respect of Haida Rights and Title: a. Transport Canada and ENG determined (through the TERMPOL process) that the tanker routes through Haida Territory are the only feasible options for the project’s tankers traveling to and from the proposed Kitimat terminal; b. the Haida were not consulted about or invited to participate in the TERMPOL process;195 c. thus, high-level strategic planning and design work had already been completed without Haida participation before the JRP process began; 216. Ultimately, the so-called consultation within the JRP process was an exercise to facilitate ENG seeking to devise mitigation measures (i.e. compensation and oil spill clean-up measures) for the Project. It had little if anything to do with recognizing Haida interests and seeking to accommodate those interests in terms of cultural and environmental impacts. ENG was unwilling to discuss the possibility of putting the JRP process on hold pending direct consultations between Haida and ENG.196 217. The Consultation Framework provides that Canada will consult directly with Aboriginal groups regarding any project-related issues outside of the JRP’s mandate, and that the JRP will not make any final determinations regarding any strength of Aboriginal rights claims.197 218. Canada has committed to consulting directly with Aboriginal groups to whom a legal duty to consult is owed, once the JRP releases its report, prior to issuing Canada’s response. These consultations will seek to establish: a. Whether concerns about potential project impacts on potential or established Aboriginal and Treaty rights have been accurately characterized by the JRP; b. Whether concerns have been addressed by ENG in the JRP’s Environmental Assessment Report and recommendations; c. Whether there remain any outstanding concerns; and d. The manner and extent to which any recommended mitigation measures might serve to accommodate these concerns.

194 Aboriginal Consultation Framework for the Northern Gateway Project (the “Consultation Framework”), p.1. 195 Only the Haisla First Nation was invited to participate in the TERMPOL Review Committee (Gitxaala Nation v Canada (Transport, Infrastructure and Communities, 2012 FC 1336 (CanLII), para 21 196 D35-11-1 197 The Consultation Framework, p. 2. COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 46

219. CHN asserts that, in addition to consulting with the Haida on the matters set out above, Canada must consult with and accommodate the Haida with respect to the following outstanding issues that are outside the JRP’s mandate: a. the potential impact on the waters and coastline of Haida Gwaii and SGaan Kinghlas (Bowie Seamount) from the introduction of invasive foreign aquatic species from the ballast water and hull-fouling of the project’s tankers; b. the impact of an oil spill from the project’s tankers on the fragile ecosystem of SGaan Kinghlas (Bowie Seamount); and c. the impact of allowing McIntyre Bay to be used as a port of refuge for the project’s tankers.

PART VI: CONCLUSION

205. Haida Culture is best defined as the relationship of the people to the surrounding lands and ocean. The Haida language, art, feasts and songs are all expressions of that relationship. The well-being of the lands and sea are essential to the well-being of the culture: these are the “interests” of the Haida Nation. 206. This proposal, if approved not only puts the ocean, marine life, Haida culture, economic livelihood and the future of our children at risk, but it also guarantees the contamination of the marine ecosystems with aquatic invasive species through the discharge of ballast water and oil spills. 207. ENG’s application should not be approved. The JRP cannot fulfill its mandate to review the project in a “careful and precautionary manner” 198 in the absence of a thorough and probative environment assessment specific to Haida Gwaii. ENG has failed to provide a meaningful environmental assessment of the potential impacts of the project on Haida Gwaii, Haida territorial waters, and the Haida people. The application does not incorporate any of the evidence that the Haida provided with the result that it is impossible for the JRP and the Haida to properly assess the potential adverse environmental and cultural effects of the project. 208. Canada has not upheld the honour of the Crown in the project assessment. Rather than protecting Haida Aboriginal Rights, the Crown has advocated for the project and made it impossible to properly assess the impacts of the project for the Haida Nation and Haida Gwaii. 209. The Crown has breached its obligations to the Haida through its role in this Process by undermining the JRP process through advocating for the project, tainting the Environmental Assessment process, removing the authority of the JRP to decline to approve the project and directing the JRP to provide conditional terms of approval even if the JRP does not ultimately recommend the approval of the project. As a result of

198 JRP Agreement, subsection 6.3 COUNCIL OF THE HAIDA NATION ARGUMENT | ENGP Joint Review Panel Page 47

these changes, the JRP process is not an adequate or appropriate forum for the Crown to discharge its legal duty to consult with, and accommodate the interests of, the Haida Nation with respect to the ENG project. The Crown’s duty to consult and accommodate with the Haida has not been met. The Haida have a strong prima facie case of Aboriginal Rights and Title, which requires not only the deepest level of consultation, but also accommodation that involves its consent with respect to high risk projects that threatens the very existence of the Haida way of life. 210. Until such time as Canadian courts have considered how Aboriginal law applies to marine spaces, the Crown must act honourably when contemplating any actions or decisions that could affect such aboriginal title. 211. Haida Gwaii is a globally important area, and the Haida and the Crown have made great strides in achieving reconciliation of Haida and Crown title through various shared management agreements which have resulted, and will continue to result, in protection and better management of the terrestrial and marine ecosystems of Haida Gwaii. The significant risks to the environment and culture of Haida Gwaii and the legal obligations of the Crown to the Haida Nation require that the JRP recommend that the project not be approved, and that the Crown decline to order a certificate of public convenience and necessity for the consultation and operation of the project. 212. The Crown’s obligations to the Haida are significant given the Crown’s notice and knowledge of both Haida Title and the successes with implementing reconciliation of Haida and Crown title throughout Haida Territory.