25.0 FIRST NATIONS CONSIDERATIONS 25.1 INTRODUCTION The VPA recognizes that First Nations may have a distinct interest in the proposed Deltaport Third Berth Project and have therefore undertaken a separate First Nations consultation process in addition to the public consultation program outlined in Chapter 6 Information Distribution and Consultation. This chapter provides a summary of the First Nations consultation program undertaken by the proponent during the early notification and pre-application phases of project development. It also includes an overview of traditional uses and archaeology resources. A list of references is also included (Section 25.8 Traditional Use References) to support the traditional use assessment. 25.1.1 Background The VPA has prepared a container terminal expansion strategy, which includes the development of additional container facilities at VPA’s existing Roberts Bank Port facility located in Delta, British Columbia. Deltaport, VPA’s existing container terminal at Roberts Bank, functions as a transshipment centre for the transfer of containers between marine vessels and inland transportation by road and rail. The proposed expansion includes two separate container terminal projects: the proposed Deltaport Third Berth Project and the Terminal 2 Project. The current consultation program deals only with the Deltaport Third Berth Project. The proposed Deltaport Third Berth Project will add a third berth to the existing Deltaport Container Terminal. This requires the construction of a wharf to accommodate a third berth and construction of a fill area of approximately 20 hectares (50 acres) of land for an expanded container storage yard. The Project also includes: • expansion of the existing ship channel to the north; • creation of a tug moorage area adjacent to the north side of the third berth; • relocation of a safety boat launch (currently located on the north side of Deltaport); • addition of approximately 7,000 metres (23,000 feet) of rail track on the causeway and adjacent to Roberts Bank within BC Rail’s right-of-way; Deltaport Third Berth Project January 2005 Environmental Assessment Application Page 792 • on-site utilities, water and storm-water systems; • one new truck exit gate; • three new ship-to-shore gantry cranes and other land-based equipment; • traffic management improvements on Highway 17; • closure of the south leg of 57B Street from the 57B Street/Deltaport Way intersection and addition of a 5,000 ft (1.5 km) gravel farm access road within BC Rail’s right-of-way between 57B Street and 64th Street; and • traffic management improvements on Highway 17. To move forward with the Project, an Application for an Environmental Assessment Certificate pursuant to the British Columbia Environmental Assessment Act (2002) is required. This report is one of a series of reports prepared for the application to be submitted to the British Columbia Environmental Assessment Office (EAO), and the Canadian Environmental Assessment Agency. 25.1.2 Response to Terms of Reference The Application for the Project Approval Certificate is guided by the ATOR for the proposed Deltaport Third Berth Project issued October 8, 2004. This report meets the following sections of the ATOR: Table 25.1 First Nations Considerations Terms of Reference Coverage Section of Terms Application Coverage Response in this Report of Reference 12.1 Identify Local First Nations 25.3.1 12.2 Consultation with First Nations 25.2, 25.3.2, 25.3.3 12.3 Study Areas 25.3.1 12.4 Project Setting - Traditional Use 25.5 Issues in Vicinity of Project 12.5 Project Setting – Archaeological Summary contained in Section 25.6, (info. also in Resources Chapter 18 Archaeology) 12.6 Project Setting – Socio and 25.3.3, 25.4 Economic Considerations 12.7 Potential Project Effects on First 25.3.3, 25.4 Nations Interests 12.8 Environmental Management Summary contained in Section 25.6.1 (info. also in Chapter 21 Environmental Management Program). Deltaport Third Berth Project January 2005 Environmental Assessment Application Page 793 Each First Nation has distinct issues concerning the Project and varying expectations for appropriate consultation. For example, some First Nations identified issues surrounding traditional use whereas others did not. The content within these sections therefore, reflect the variation of issues and concerns raised by each First Nation. 25.1.3 First Nations Provincial Consultation Policy Court decisions have established that provincial government activities cannot infringe upon existing aboriginal rights and/or title without proper justification. The courts have stated that, where a First Nation has asserted but not yet proved aboriginal rights and/or title, there is a constitutional and fiduciary responsibility to consult and consider the interests being asserted. Actual proof of aboriginal rights or title is not required for the Crown to be obligated to consult. In recognition of aboriginal rights and title the province of British Columbia released the First Nations Consultation Policy in October of 2002, which describes the province’s commitment and approach to consult with First Nations and address aboriginal interests before deciding upon actions that may affect those interests. As a result, this has placed the onus upon project proponents to consult with First Nations who may have an interest in a project that falls within, or close to, their asserted traditional territory. 25.1.4 Consultation and Environmental Assessment The proposed Deltaport Third Berth Project requires approval under the BCEAA and an Environmental Assessment pursuant to the CEAA. A separate process for First Nations, distinct from public consultation, has become an integral component of a project review and is required for project approval by the BCEAO. The BCEAO expects project proponents to establish meaningful consultation with First Nations to address, and if necessary, accommodate First Nations interests. 25.2 CONSULTATION APPROACH 25.2.1 Objectives The objective of the VPA’s consultation program is to identify, consult with, and if required, accommodate First Nations interests that are potentially affected by the Project with respect to Deltaport Third Berth Project January 2005 Environmental Assessment Application Page 794 aboriginal rights and title within asserted traditional territories. This objective is consistent with the provincial First Nations Consultation Policy (2002), and in accordance with BCEAA. 25.2.2 Scope of Consultation The scope of the consultation program included engaging First Nations whose asserted traditional territories encompass the geographic area of activities arising from the development and operational life of the proposed Deltaport Third Berth Project. VPA has also expressed the willingness to acknowledge and address the issues of First Nations whose asserted traditional territories are not necessarily within the Project area but may nevertheless express an interest in the Project. The scope of requirements the BCEAO places on a proponent conducting First Nations consultation include, but are not limited to: • directly consulting with First Nations; • carrying out the consultation program set out in the Application; • reporting on consultation activities; • reporting on the issues identified by First Nations during consultations; and • reporting on how the proponent proposes to address and/or attempt to accommodate any potential adverse impacts to First Nations. 25.2.3 Methodology The methods used to identify and engage First Nations that may have an interest in the Project include, but are not necessarily limited to: • early identification and discussion with First Nations whose traditional territories encompass, or are in close proximity to the Project; • distributing Project information and other related resources to allow First Nations to effectively participate in the consultation process; Deltaport Third Berth Project January 2005 Environmental Assessment Application Page 795 • acknowledging and identifying issues raised by aboriginal people and propose actions to address these issues; • monitoring and evaluating the performance of consultation activities including issues tracking and follow up activities; • inviting First Nations to be part of the decision making process such as participating in EAO working groups; and • where possible, establishing agreements with the First Nations that provide for the protection of aboriginal rights. 25.3 CONSULTATION PROGRAM The consultation program aims to identify and address all issues and concerns raised by First Nations throughout the following Project phases. Table 25.2 Consultation Program Phase Activity Timing Phase I Early Notification Spring 2003 Phase II Pre-Application Summer 2003 – Fall 2004 Phase III Application Review Early 2005 – Spring 2005 Phase IV Post-Approval and Construction 2005 – 2008 Phase I: Early Notification (Spring 2003) The main objectives for this phase were to: • forward introductory letters to Chief and Council to notify them of the Project; • conduct telephone discussions to identify initial First Nations interests and issues associated with the project; • confirm an administrative contact person for distribution of project information; and • meet with Chief and Council to provide a project overview, further identify interests and receive direction on future consultation requirements. Deltaport Third Berth Project January 2005 Environmental Assessment Application Page 796 Phase II: Pre-Application (Summer 2003 – Fall 2004) The main objectives