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.