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From Semiahmoo First Nation to the Review Panel Re: Oral Presentation

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Date: May 16, 2019 s EMIAHMOO FIRST NATION Canadian Environmental Assessment Agency Roberts Bank Terminal2 Project Public Hearing Phase Overview of Oral Hearing Submission by Semiahmoo First Nation To: Cindy Parker Review Panel Manager Roberts Bank Termina12 Project c/o Canadian Environmental Assessment Agency 160 Elgin Street, 22nd Floor Ottawa, ON K1A OH3 16049 Beach Road, Surrey, British Columbia, Canada V3Z 9R6 Tel: 604.536.3101 Fax: 604.536.6116 E-mail: [email protected] The Semiahmoo First Nation ("Semiahmoo") holds Aboriginal rights and title and exercises our rights, practices and culture throughout our Traditional Territory. Additionally, Semiahmoo exercises our rights, practices and culture throughout the broader resources area, which includes the lower Fraser River, Roberts Bank, Semiahmoo Bay, Boundary Bay, Fraser River, Nicomekl River, Serpentine River, Little Campbell River the Gulf Islands including San Juan Island, Vancouver Island, Washington State and the Salish Sea. Semiahmoo has communicated the adverse effects of the Roberts Band Terminal2 Project ("RBT2") on our Aboriginal rights and title to the project proponent and the Crown. Semiahmoo has previously demanded studies regarding cumulative effects of marine shipping in regard to the regarding the Marine Shipping Addendum and RBT2 including: • a traditional marine use study to examine the impacts on our Aboriginal rights and title; • a study of the effects of sedimentation on the foreshore of the Semiahmoo Indian Reserve lands from the tide, current and wave action, and any potential effect on the Semiahmoo First Nation's Aboriginal rights and title; • a study of the effects of fuel or dangerous goods spills within Semiahmoo's Traditional Territory, on the foreshore of the Semiahmoo Indian Reserve lands from the tide, current and wave action, and any potential effect on the Semiahmoo First Nation Aboriginal rights and title; • a study of effects of RBT2 on marine mammal populations, including the Southern Resident Killer Whales; • a study regarding the size and quantity of vessels within the Salish Sea and the present and future impacts on the marine environment from all projects operating in the Salish Sea; and • a study of the current and cumulative impacts of all projects operating in the Salish Sea, including an examination of the potential effects of shipping on the marine environment in Semiahmoo First Nations Traditional Territory. To our knowledge, these studies have not been completed and if completed did not include our interests in the Gulf Islands; the existing shipping lanes; Semiahmoo Bay; the Semiahrnoo Indian Reserve foreshqre; or any territory located south of the shared boarder with the United States of America including the Salish Sea and Point Roberts. Semiahmoo Bay, Point Roberts and Historical Village Sites Semiahmoo First Nation has deep connections to the Point Roberts, Semiahmoo Bay, Boundary Bay, Fraser River, Nicomekl River, Serpentine River, Little Campbell River, the Salish Sea and the location ofRBT2. These areas comprise portions of the traditional village sites at Point Roberts and Cannery Point. These village sites are the traditional harvesting locations of shellfish, finfish, and various other traditional foods of the Semiahmoo People. Semiahmoo has exclusive Aboriginal rights and title to Semiahmoo Bay, Point Roberts and village sites at SCOUTEN, and C'ELLTENEM and were the traditional, caretakers of the reef net sites. Archeological evidence of Semiahmoo's connection to this area can be traced back 7000 to 10,000 years. The details of the reef net sites are addressed in the submissions of the Sencot'en Alliance which includes Semiahmoo; Tsawout; Pauquachin; Tsartlip, and the WSANEC group which includes Tsawout, Pauquachin, Tsartlip, Tseycum, Malahat, Semiahmoo, and Lummi, as well as the Wayne Suttles Phd. Dissertation, Economic Life ofthe Coast Salish ofHaro and Rosario Straits. Further, the reef net sites were held by relationship to Semiahmoo through inheritance or marriage, and members of Lummi are decedents of what is known as "Old Semiahmoo", which refers to the Semiahmoo before the boarder with the United States of America was forced on the Semiahmoo. The boarder forced members of"Old Semiahmoo" to choose to live in Canada or the United States of America, those that choose to live in the United States of America became members of United States of America Tribes, most notably the Lummi. Those that remained in Canada were charged with protecting and caretaking of the Semiahmoo harvesting sites in Semiahmoo Bay, SCOUTEN, C'ELLTENEM and Point Roberts. Semiahmoo, a member of the Sencot' en Alliance, pursued a court action regarding the Tsawwassen Treaty and the failure of the Crown to consult with Semiahmoo. The Crown relies upon the Tsawwassen Treaty when "consulting" on projects in the area of Delta Port. In the action, "[t]he Sencot'en Alliance asserts claims to aboriginal title and rights over a territory including, but not limited to, the islands in the Strait of Georgia. They assert that they have exclusively used and occupied the Saanich Peninsula, all of the Southern Gulf Islands, Point Roberts, Boundary Bay, and the Lower Fraser River, in the Strait of Georgia, since time immemorial." (Cook v. The Minister ofAboriginal Relations and Reconciliation, 2007 BCSC 1722, at para 144) ("Cook'') Although the court in Cook held that it would be inappropriate to opine on "the strength of the petitioner's aboriginal rights," Madam Justice Garson (as she was at the time) found that petitioners did "demonstrated credible claims about their asserted traditional territories." Further in Cook, Madame Justice Garson at paragraph 194, states: [194] ... The Minister agrees that now that the fmal terms are known, the Crown must consult with the petitioners. The content of that consultation is the responsibility of the Crown, but I would expect it to at least take the form of providing assistance, fmancial and otherwise, to enable the petitioners to understand this complex agreement and then to compare it to their own asserted claims to aboriginal rights and title. [195] If the results of that consultation identify infringement that requires accommodation, the Crown will have to seek acceptable forms of accommodation. Failing all this, and assuming the petitioners can identify infringement of their rights or title, they will still be able to seek the appropriate remedy from this Court. Semiahmoo was not consulted regarding the Tsawwassen Treaty, nor has Semiahmoo received any accommodation for the infringement of their Aboriginal rights and title. Any approval must be contingent on the Crown resolving outstanding accommodation of Semiahmoo First Nation's Aboriginal rights and title. Vancouver Fraser Port Authority- Project Bias It is well established at law that the Crown's duty to consult cannot be discharged in a manner giving rise to a reasonable apprehension of bias or in circumstances where the Crown fails to consider accommodation with an open mind. The Crown's fulfillment of multiple roles associated with the RBT2 Project, as the decision maker (CEAA), the proponent (Vancouver Fraser Port Authority) and the fiduciary to Indigenous Peoples (Crown), creates a systemic bias regarding the aboriginal and public consultation process of this Project. The Crown denies the presence of a reasonable apprehension of bias. However, the systemic bias is demonstrated and confirmed by the Vancouver Fraser Port Authority's failures to consider Global Container Terminal's Delta Berth 4 project. Moreover, the Vancouver Port Authority's position as the project proponent represents a conflict of interest. Demonstration of open-minded consideration regarding the RBT2 Project fundamentally requires that the Crown discontinues or delay the RBT2 Project until all other options and studies are reviewed and sufficiently considered. The principles of fundamental justice demand that the Crown fully and properly evaluates the Delta Berth 4 Project, that meaningful consultation and accommodation occur with all First Nations affected by RBT2, and that all studies are completed and meaningfully considered before any material decision. It is Semiahmoo's position that these studies must include a thorough examination of the cumulative effects on the Salish Sea, and Semiahmoo Bay. The studies must be conducted by an unbiased party which is fully independent of the Vancouver Fraser Port Authority. Traffic - Truck and Rail Projected increase in truck and rail traffic associated with the RBT2 Project will significantly impact the Semiahmoo First Nation and the surrounding communities. Any approval must be contingent on upon the resolution of: a) traffic congestion at the George Massey Tunnel; Highway 99 at 8th A venue in South Surrey; and Highway 99 at the Peace Arch Canada-United States of America Boarder Crossing. These traffic issues significantly impact the Semiahmoo First Nation and travel within their Traditional Territory. More specifically traffic congestion at 8th Avenue and the Peace Arch Canada-United States of America Boarder Crossing create significant safety issues for Semiahmoo First Nation as they create long delays to the only access to the Semiahmoo Indian Reserve. Frequently delays accessing the Semiahmoo Indian Reserve last between one and three hours. b) rail traffic through the Semiahmoo Indian Reserve. Currently, trains operated by the BNSF Railway and Via Rail Canada travel past the Semiahmoo First Nation, resulting
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