panel rbt2 / commission rbt2 (ceaa/acee) cc · reference, at appendix i, and request that the...

From:To: Panel RBT2 / Commission RBT2 (CEAA/ACEE)Cc:

Subject: RBT2 - Penelakut Sufficiency Comments to the PanelDate: October 26, 2016 4:40:45 PMAttachments: Penelakut Sufficiency Comments to RBT2 Panel Oct 26 2016.pdf

Attn.: Debra Myles, Panel Manager I’m attaching my community’s comments on sufficiency to this email. Please note that we haveworked closely with the other local Tribes that form part of our Tribal group, and as a group we callourselves the Cowichan Nation Alliance (CNA), so we have also included in our attached table ofoutstanding information requests, matters previously submitted by the CNA, Cowichan Tribes, andStz’uminus FN on their own behalf and on behalf of the other CNA Tribes.We appreciate the Panel’s time and attention in reviewing these matters of concern for ourcommunity. Given the size of the attachment it would be useful if we can get confirmation ofreceipt of this email to confirm it has made it through your servers.Best RegardsRuth SauderPenelakut Tribe Administrator

Ruth Sauder

Saely,Analise [CEAA]; [email protected]; "Scoble, Jemma"; "Jennifer Griffith"; "Chip Seymour"; ; "Natalie Anderson";

"Jack Smith"

Pene[a trrri6e

Oct. 26th, 2016

Via email to: [email protected]

Debra Myles Review Panel Manager, Roberts Bank Terminal 2 Project c/o CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY 160 Elgin Street, 22nd Floor, Ottawa ON K1A OH3

Re: Penelakut Tribe comments on Roberts Bank Terminal 2 Environmental Impact Statement

I. Background

This letter provides the Penelakut Tribe's comments on the sufficiency of the Environmental Impact Statement (EIS) and additional information currently in the record for assessing the effects of the Roberts Bank Terminal 2 (RBT2) Project on the environment and on the Penelakut Tribe's Aboriginal rights.

1. Who is the Penelakut Tribe?

The Penelakut Tribe is a 'Band' as defined in the Indian Act. The Penelakut Tribe currently has reserves located on Penelakut Island, Galiano Island, and Tent Island, and the Tsussie Reserve at the Bonsall Creek estuary on southeast Vancouver Island. Penelakut's Reserve land is directly across the Salish Sea from the proposed RBT2 .

The Penelakut Tribe is part of the historic Cowichan Nation, which was an aboriginal people, nation or group at the assertion of Crown sovereignty over British Columbia in 1846 and at European contact in the early 1790s. Penelakut was one of the named Cowichan Nation communities that occupied lands at the south shore of Lulu Island on the main (south) arm of the Fraser River, before, at, and after 1846 and the early 1790s. The Lulu Island village at Tl'uqtinus was exclusively occupied by the Cowichan Nation at all relevant times for establishing aboriginal rights and title on the south arm of the Fraser River, and aboriginal rights at the mouth of the south arm of the Fraser River including the area of the RBT2 project. The ancestors of the Penelakut Tribe engaged in fishing within the RBT2 project area before, at and after 1846 and the early 1790s, and the Penelakut Tribe currently continues to engage in extensive fishing activities in the

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Box 360 Chemainus, BC VOR l KO Phone: (250) 246-2321 Fax: (250) 246-2725

RBT2 project area. Penelakut Tribe and the other Cowichan Nation bands are actively engaged in mainland land and fishing rights recovery with the reasonable expectation that their future use of this area for fishing, harvesting, sea mammal and bird hunting, will be even greater than it is today.

The areas used by the Penelakut Tribe and other Cowichan Nation bands include the Local Assessment Area (LAA) and a significant portion of the Regional Assessment Area (RAA) associated with RBT2. This area coincides with the Hul'qumi'num Treaty Group Asserted Traditional Territory, as shown on the map included in the RBT2 EIS at Figure No. 32-5.

2. Penelakut Tribe Strength of Claim

The Penelakut Tribe asserts both Aboriginal title to and Aboriginal rights in the Roberts Bank area.

Canada has determined within the context of the marine shipping route for the Kinder Morgan Trans Mountain Expansion Project that the Penelakut Tribe has a strong prima facie claim to asserted rights within portions of the marine shipping route. 1 This was described in more detail as "pre-contact traditional territory of the Penelakut and where there is information of their historic use as part of their traditional seasonal round, including areas in the Strait of Georgia proximal to, and within the southern reaches of, the southern arm of the Fraser River. .. "

Further, the BC Environmental Assessment Office has assessed the strength of the Penelakut Tribes claim of Aboriginal rights to fish, gather and hunt in areas in proximity to the proposed George Massey Tunnel Replacement project, including the South Arm of the Fraser River, as strong.2

The BC EAO has assessed the Penelakut Tribe claim of Aboriginal title as moderate. The Penelakut Tribe disagrees with BC's assessment of its Aboriginal title claim as moderate, and asserts that this is a strong claim. The use and occupation of the Fraser River area on an annual basis is documented in the Province's "Fraser River Head Lease Areas, Review of Ethnographic and Historical Sources" Report, dated July 10, 2014 and revised September 11, 2014. This annual migration to village sites on the Fraser River for resource harvesting amounts to use and occupation for the purpose of establishing Aboriginal title.

1 Canadian Environmental Assessment Agency "CEAA" letter to Penelakut Tribe, September 15, 2016. 2 BC EAO draft Assessment Report, Aboriginal Consultation Report section, George Massey Tunnel Replacement Project.

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The Penelakut Tribe is currently seeking a declaration of Aboriginal Title to the Tl'uqtinus Lands on Lulu Island and of Aboriginal fishing rights to the South Arm of the Fraser River.

3. Penelakut Practices

Historic documentation unequivocally places the Penelakut Tribe in and around Roberts Bank at the time of contact and in 1846. It demonstrates that the Penelakut Tribe had a village on the south Arm of the Fraser River, which was accessed regularly via Canoe pass. It also demonstrates that the Penelakut Tribe regularly engaged in traditional use in the Roberts Bank, Fraser Delta and Fraser River area, including but not limited to:

• Fishing (including sockeye, sturgeon, shellfish) • Plant harvesting (including berries and wapato)

• Trapping (beaver)

• Hunting (ducks, geese)

4. Penelakut Crab Fishery

The Penelakut Tribe relies on crab taken from the RBT2 area to support its food, social and ceremonial fishery and its traditional way of life. Much of Penelakut Territory is subject to Fisheries and Oceans Canada consumption advisories due to Dioxin contamination. As a result, RBT2 is the only area within Penelakut Territory where the Penelakut people feel confident that the crab they obtain can be eaten in its entirety. As a result of consumption advisories, crab taken from other areas of Penelakut Territory can only be consumed after the organs are removed. Crab organs, however, form a part of the Penelakut Tribe traditional diet and provide necessary nutrition.3

At the time of this writing, Fisheries and Oceans Canada had the following dioxin contamination consumption advisories in Area 17 of Penelakut Territory:

Crofton

• Consumption of crab hepatopancreas in a portion of Stuart Channel should not exceed 40 g/week.

• This area of Stuart Channel is bounded on the north by a line from Donckele Point on Kuper /sland4 to the point at the southeastern entrance to Preedy Harbour on Thetis Island, thence to the most southern point of Dayman Island, thence to the most southern point of Scott Island, westerly to Sharpe Point on

3 For more detail, see the Penelakut Tribe's January 4, 2016 letter to the proponent, CEAA Registry Doc. #396. 4 Canada is still using the former name for the Penelakut Tribe's Penelakut Island, formally renamed by BC several years ago.

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Vancouver Island, thence southwesterly across Ladysmith Harbour to a point on the shore 230° true from Sharpe Point; thence southerly along the shore of Vancouver Island to Grave Point; thence north of a line to Erskine Point on Saltspring Island; thence northerly along the shore to Parminter Point, thence west of a line to Josling Point on Kuper Island, thence northerly along the shore to the point of commencement at Donckele Point.

Nanaimo (Harmac)

• Consumption of crab hepatopancreas harvested in the waters west of a line from Reynolds Point to Miami Islet to a point at the entrance to Kulleet Bay true south of Deer Point, should not exceed 1 05g/week.

In addition to these closures due to dioxin contamination, log boom water lots in the Chemainus River Estuary and Bonsall Creek Estuary5 have eliminated these areas as viable harvesting grounds, due to both obstruction and de-oxygenation.

As a result, the Penelakut Crab fishery at Roberts Bank forms a significant and central element of the Penelakut Tribe's food social and ceremonial fishery and the Penelakut Tribe's exercise of its Aboriginal rights.

5. How will the Penelakut Tribe be affected by the Project?

The Penelakut Tribe stands to be impacted from all elements of the Project: construction, operations and accidents/malfunctions. In addition, the Penelakut Tribe stands to be impacted by operations and accidents/malfunctions from the marine shipping component.

RBT2 will displace the Penelakut Tribe from an important crab fishing area, both during construction and operation, as a result of footprint impacts.6

In addition, the vessel traffic associated with construction and operation of the terminal will increase navigational conflicts for Penelakut Tribe members engaged in marine harvesting at Roberts Bank.?

The marine shipping traffic will also increase navigational conflicts for Penelakut Tribe members travelling to marine harvesting sites at Roberts Bank, as this requires crossing the Salish Sea and the shipping lanes.

5 CEAA Registry Doc. # 500, p 24. 6 EIS pp 32-102 to 32-103, CEAA Registry Doc.# 181. 7 EIS pp 32-102 to 32-103, CEAA Registry Doc.# 181.

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An accident or malfunction at the terminal could result in additional impacts on substrates, marine vegetation and marine invertebrates. An accident or malfunction that results in mortality of valued marine species.

While all these are effects to the environment or changes to the environment to be assessed under CEAA, 2012, the project will also impact on Penelakut Aboriginal title and other Aboriginal rights.

The Penelakut Tribe is concerned that necessary information to provide the context for assessment of impacts is missing from the RBT2 EIS. This is addressed in more detail below, in our comments on sufficiency.

II. Comments on Sufficiency

1. Previously Expressed Concerns

The Penelakut Tribe, the Cowichan Nation Alliance, and the Cowichan Tribes and Stz'uminus First Nation made earlier submissions to CEAA on the completeness of the RBT2 EIS. CEAA advised that in its view some of these submissions related to sufficiency rather than completeness.

We have reproduced the information provided to us by CEAA in this regard, for your reference, at Appendix I, and request that the outstanding information requests be considered as comments on sufficiency.

2. CEAA Comments and Request for Additional Information

On August 31, 2016, CEAA wrote to the Panel with comments and included information requests to the Vancouver Fraser Port Authority for the purposes of the Crown's assessment of the potential impacts of the Project and marine shipping associated with the Project on the exercise of potential or established Aboriginal or Treaty rights. 8

The Penelakut Tribe supports this request for additional information, with the following additional comments.

Under the heading Cumulative Effects, CEAA requests "a description of the extent to which existing and reasonably foreseeable future development is affecting each Indigenous group's ability to practice their rights within the Project and marine shipping area(s)."

a CEAA Registry Doc. # 526.

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The Penelakut Tribe is of the view that this does not go far enough, as it does not consider context relevant to the assessment of project impacts on the Penelakut Tribe's current use of land and resources for traditional purpose or on aboriginal rights.

Effects of a project on the environment under CEAA, 2012 must be assessed in two ways. First, the direct effects on the environment must be assessed for significance (s. 5(1)(a)). Second, the effects of changes to the environment on the subjects set out in ss. 5(1)(b) & (c) must be assessed for significance. The subjects listed under s. 5(1)(c) are:

with respect to aboriginal peoples, (i) health and socio-economic conditions, (ii) physical and cultural heritage, (iii) the current use of lands and resources for traditional purposes, or (iv) any structure, site or thing that is of historical, archaeological, paleontological or architectural significance.

Thus, even changes to the elements of the environment listed ins. 5(1)(a) which are not determined to be significant could result in changes to the environment that have significant impacts on, for example, the current use of land and resources for traditional purposes of an Aboriginal group.

CEAA's Technical Guidance for assessing the Current Use of Lands and Resources for Traditional Purposes under the Canadian Environmental Assessment Act, 2012 recognizes that spatial and temporal boundaries used in an environmental assessment may vary, depending on the valued component being assessed. With respect to the Penelakut Tribe's marine harvesting the spatial boundary should be based on the marine portion of the Penelakut Tribe's Core Territory, in order to provide appropriate context information.

The Penelakut Tribe exercises its Aboriginal rights to fish and harvest marine resources in an area which includes marine habitat from the east coast of Vancouver Island across the Salish Sea to Roberts Bank and the mouth of the Fraser River. Existing industrial development and practices and over-fishing have resulted in significant portions of Penelakut's marine harvest areas having become unavailable. Further areas are subject to consumption advisories, such as the dioxin consumption advisory identified above.

On June 28, 2016, Parks Canada filed Marine Atlas Information with the Panel.9 The Marine Atlas includes maps showing non-tenured commercial activity (p 9), existing coastal and marine uses (p 24), boating activity (p 39), marinas and docks (p 40),

9 CEAA Registry Ooc. # SQO. r: · , ·

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sanitary shellfish closures (p 48). All of these interfere with the Penelakut Tribe's ability to engage in current use of land and resources for traditional purposes and in the exercise of Aboriginal rights.

In order to understand the effects of changes to the environment on Penelakut current use ofland and resources for traditional purposes, the scope for assessing cumulative impacts on the Penelakut Tribe's current use of land and resources for traditional purposes should be the marine portion of Penelakut Core Territory. The limitations imposed by industrial development and practices and other activities in Penelakut Territory mean that harvesting at Roberts Bank has a magnified significance to the Penelakut Tribe. The extent to which opportunities to engage in marine harvesting is constrained in the rest of the marine portion of the Penelakut Tribe's Core Territory is necessary context for understanding the effects on the environment and of changes to the environment as a result of RBT2 on the Penelakut Tribe's marine harvesting.

The Penelakut Tribe has requested funding from the Port Metro Vancouver I Vancouver Fraser Port Authority to prepare mapping which would show the prohibitions, restrictions and limitations on seafood harvesting in the marine portion of the Penelakut Tribe's Core Territory in order to provide the necessary context for the Panel to understand the effects of changes to the environment on Penelakut's current use of land and resources for traditional purposes.10

The Penelakut Tribe is of the view that this mapping is required so that the Panel has sufficient information to assess the Project. It is also necessary for the Crown to understand impacts to the Penelakut Tribe's Aboriginal rights. To date, the Vancouver Fraser Port Authority has declined to provide the funding necessary for the Penelakut Tribe to retain the appropriate consultants to prepare the required mapping.

3. Penelakut additional information sought

The Penelakut Tribe submits that the EIS is currently not sufficient to assess environmental effects. The following additional information is required:

• An assessment of the impacts of RBT2 on the Penelakut Tribe's current use of land and resources that uses spatial boundaries that are consistent with the marine portion of the Penelakut Tribe's Core Territory. Rationale: see submissions regarding context above.

• An assessment of human health impacts that is based on the Penelakut Tribe's shellfish consumption rates instead of on the consumption rates relied upon in

10 Transport Canada has also the potential for vessel transit impacts on potential or established Aboriginal and Treaty rights and related interests. See CEAA Registry Doc. # 580.

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the EIS. Rationale: On January 4, 2016, the Penelakut Tribe advised Port Metro Vancouver I Vancouver Fraser Port Authority that Penelakut shellfish consumption rates were significantly higher than the rates relied on in the EIS for the assessment of human health impacts from contamination .

We note that Health Canada has also identified concerns with the sufficiency of the Human Health Effects Assessment in the EIS, including with food consumption figures for First Nations. 11

• An assessment of cumulative effects on current use activities of Aboriginal groups. Rationale: Together, the impacts which have been determined to be negligible may add up to a measurable negative effect. This should be considered.

Ill. Other Comments

The Penelakut Tribe is available to provide additional information to the Panel about its concerns with the sufficiency of the EIS, specifically as it relates to context for the assessment of impacts on Penelakut Tribe current use of land and resources for traditional purposes, and on other matters of interest to the Panel.

S~AI\oN t-RoSS

Cc: Analise Saely, Crown Consultation Coordinator, Canadian Environmental Assessment Agency Via Email: [email protected]

Brian Nelson, Manager, Project Development- Aboriginal Consultation, Vancouver Fraser Port Authority Via Email: [email protected]

Chief William Seymour, Cowichan Tribes, Via email:

Chief John Elliott, Stz'uminus FN, Via email:

Chief Bert Thomas, Halalt FN, Via email:

11 CEAA Registry Doc. # 579.

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APPENDIX 1:

OUTSTANDING INFORMATION REQUESTS IDENTIFIED BY THE CANADIAN ENVIRONMENTAL ASSESSMENT AGENCY TO RELATE TO SUFFICIENCY RATHER THAN COMPLETENESS

Penelakut Tribe: Outstanding Information Requests

Topic/ Reference to Information Penelakut's Rationale Rationale for not requesting Issue EIS Request information

Guidelines

Section 13.0 Marine Fish Effects Assessment

Effects of The EIS identifies that construction of the The Agency did not request TSS on Project will create elevated additional information for this item

Salmon concentrations of TSS in the LAA. since there is already some

Migration12 The EIS states that "Effects of TSS on information provided in the EIS. The Pacific salmon productivity are more Panel will determine whether it likely to be behavioural than injurious, requires additional information or and are therefore difficult to quantify. clarification with respect to this Both adult and juvenile salmon species information to inform its sufficiency will thus likely avoid areas of high TSS review. concentrations, thereby limiting exposure" (EIS p. 13-86).

Given this avoidance behaviour, the EIS should include an assessment of whether avoidance behaviour will have an effect on migratory paths of pacific salmon, in particular the sockeye salmon that migrate through Canoe Passage. Further, the EIS should provide an assessment of the i!11PC1Ct9fCI\t()igance

12 Environment Canada has also sought additional information relating to changes in TSS on valued components. See CEAA Registry Doc.# 581. 9

behaviour on the Aboriginal sockeye fishery.

Section 16.0 Ongoing Productivity of Commercial, Recreational, and Aboriginal Fisheries Effects Assessment

Commercial and

Aboriginal Fisheries

17.3.2 Existing Human

17.3.2 The EIS should include a description and a map of

The EIS has not considered potential impacts to the following fisheries: eulachon, sturgeon, shrimp and octopus. The rationale for not considering these impacts is that the CRA assessment focuses on "fisheries that are most likely to interact with the Project or for which there is sufficient site-specific data of presence and habitat use at Roberts Bank to permit an assessment" (EIS p. 16-7).

This is not a sufficient rationale to justify the failure to assess specific fisheries. For each of the eulachon, sturgeon, shrimp and octopus fishery, the proponent should explain specifically why impacts were not assessed. Is it because there is no likely interaction with the Project, or is it because there is not sufficient data? If it is because there is not sufficient data, what is the rationale for not obtaining sufficient data?

Marine Shipping Addendum

This information is necessary to describe the existing human environment and to understand

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The Agency did not request additional information for this item since there is already some information/rationale provided in the EIS. The Panel will determine whether it requires additional information or clarification with respect to this information to inform its sufficiency review.

The Panel will determine whether it requires additional information or clarification with respect to this information to inform its sufficiency

Environment Penelakut potential project effects. review.

A description (Hul'q'umi'num

The Crown will be using the Review Fisheries of fishing Society) Panel process to the extent possible activities, aboriginal and to collect information about potential including commercial impacts to the exercise of Penelakut Aboriginal fishing areas Tribe's rights from the Project and activities and and a marine shipping associated with the maps of description of Project and we encourage you to fishing areas their relative provide your perspective on this in the study importance. topic to the Review Panel. area and descriptions of their relative importance

17.3.2 17.3.2 The Marine The draft version of the Cowichan The Panel will determine whether it Existing

9.5.4.15 Shipping Nation Alliance Current Use portion of requires additional information or

Human Cowichan Addendum

the Marine Shipping Addendum, which clarification with respect to this Environment

Nation Alliance should include was provided to CNNPenelakut in information to inform its sufficiency advance for review, included tables review.

An inventory, (Stz'uminus an inventory, in listing traditional and cultural resource description First Nation, tabular form, of use sites for CNA and Penelakut and The Crown will be using the Review (including Cowichan Penelakut their general location relative to Panel process to the extent possible maps), and Tribes, Halalt traditional and International Shipping Lanes. to collect information about potential evaluation of First Nation, and

cultural impacts to the exercise of Penelakut

any Penelakut Tribe Penelakut identified inconsistencies Tribe's rights from the Project and archaeologic resource use between the text and the tables, and marine shipping associated with the al, cultural sites and their identified information missing from the Project and we encourage you to and historical general location tables. PMV's response was to simply provide your perspective on this resources, relative to remove the tables from the Marine topic to the Review Panel. site or International Shipping Addendum. These tables are practices that the type of information required by EIS may be

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affected by Shipping Lanes. guideline 17.3.2. They provide valuable ! the marine and relevant information and should be shipping included in the Marine Shipping associated Addendum. with the Project.

17.4.2 17.4.2 The Marine PMV has proposed some vague The Agency requested additional Effects on 12.4 Effects of Shipping mitigation measures to address

information on this topic in AIR #13

Human Changes to the Addendum adverse effects on access to preferred Aboriginal and Treaty Rights and

Environment Environment on should provide a current use locations, including Related Interests.

Aboriginal rationale for the consultation on the development of a In addition, the Panel will determine People and prediction that communication plan and measures to whether it requires additional Appendix 12 -0 the proposed reduce impacts, without providing any information or clarification with

mitigation will rationale that sets out how the respect to this information to inform

address the proposed mitigation might actually its sufficiency review.

anticipated eliminate, minimize or reduce the effect. adverse effects, including examples of where such measures have proved to mitigate effects .

............

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Cowichan Nation Alliance: Outstanding Information Requests

Topic /Issue Information Request Rationale for requiring (or not) (proposed by Cowichan Nation Alliance) information


CUMULATIVE EFFECTS Will the cumulative effect of a 6% increase in Container The Agency requested additional Vessel traffic become the tipping-point that results in information on the projects used measurable and undesirable impacts when all project- in the cumulative effects based vessel traffic increases are taken into assessment in additional consideration located within both BC and the State of information request "#7 Washington. Only southern resident killer whales were Reasonably Foreseeable Projects deemed to be near such a threshold. and Activities".

In addition, the Panel will determine whether it requires additional information or clarification with respect to this information to inform its sufficiency review.

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CONTAINER VESSEL In offshore conditions, will there be timely and adequate The Panel will determine whether : CASUALTY MEASURES- rescue and tow of a disabled container vessel that is it requires additional information Emergency Tug Rescue undertaken by a tug of adequate seaworthiness and or clarification with respect to this

power? If yes, will these be commercial tugs of information to inform its opportunity or a dedicated response tug operated by sufficiency review. trained and experienced crew for high seas rescue?

CONTAINER VESSEL Will timely and adequate salvage capability be provided The Panel will determine whether

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CASUALTY MEASURES - for a container vessel threatened or stricken with it requires additional information Salvage structural failure and needing hull patching and/or or clarification with respect to this

container cargo removal? If yes, will the salvage services information to inform its and equipment be from a company sourced sufficiency review. internationally, or will services be provided by a salvor representative whose office resides in BC and has pre-positioned equipment strategically located for rapid deployment? What will the timelines be for each salvage service (stability analysis, fire-fighting, hull patching, towing, cargo/fuel removal, shore cleanup) within the marine study area?

CONTAINER VESSEL Will there be planning and collaboration by Transport The Panel will determine whether CASUALTY MEASURES - Canada with the Cowichan Nation Alliance (CNA) on it requires additional information Potential Places of Refuge potential places of refuge within our Traditional Territory? or clarification with respect to this Planning and Collaboration If yes, what are Transport Canada's intentions and information to inform its

approaches? sufficiency review.

CONTAINER VESSEL Are there regions and periods whereby sea conditions for The Panel will determine whether CASUALTY MEASURES - Sea daylight oil spill and/or container-debris response are not it requires additional information Conditions and Response Gaps safe or ineffective within our Traditional Territory? If yes, or clarification with respect to this

what would be the frequency of limiting factors such as: information to inform its waves, wind, fog, currents, etc. within the marine study sufficiency review. area?

CONTAINER VESSEL As a precautionary approach are current and future The Panel will determine whether •

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CASUALTY MEASURES- Worst- environmental impact assessments for vessel casualty it requires additional information case Vessel Casualty scenarios and associated means for mitigation to be or clarification with respect to this Assessments based on worst-case analysis rather than relying on information to inform its

statistical analysis to render consequences and sufficiency review. preparedness lower as "credible" or "plausible" worst-case scenarios? For risk determination and emergency preparedness purposes, what direction does Transport Canada provide to the shipping industry and for federal impact assessments in defining the nature, scale and scope of major vessel casualty's consequences?

SPILL RESPONSE TO HEAVY Will heavy fuel oils (bunker) used by the project's The Panel will determine whether BUNKER FUEL OIL- Fate of container vessels - if spilled in BC's marine temperate it requires additional information Heavy Bunker Oils waters- submerge (overwash) and/or sink anywhere or clarification with respect to this

within the marine study area? If yes, then what is the information to inform its current capability within industry and government with sufficiency review. regards to having specialized equipment and trained personnel to realistically track and recover such oil? How is this specialized equipment and operations evaluated by regulatory agencies?

SPILL RESPONSE TO HEAVY Will there be a requirement to heat recovered heavy The Panel will determine whether BUNKER FUEL OIL- Extra bunker fuels in BC's temperate waters in order to it requires additional information Measures to Manage Stranded, facilitate its transfer from recovery vessels to transport or clarification with respect to this Weathered Bunker Oil barges then to land for disposal? If yes, then what is the information to inform its

current capability in industry and government with sufficiency review. regards to having specialized equipment and trained

..

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personnel to heat and transfer highly viscous, weathered bunker oil? If present, how is this specialized equipment and operations evaluated by regulatory agencies?

SHORELINE CLEANUP FOR OIL, Will ambient-temperature water flushing and deluge The Panel will determine whether HAZARDOUS MATERIALS, AND systems commonly used for sediment-type shore it requires additional information CONTAINER DEBRIS- Shoreline treatment be singularly effective for weathered heavy fuel or clarification with respect to this Cleanup Measures -Bunker Oil oil (bunker) stranded on shore? If not effective, will these information to inform its and Container-debris water-systems require augmenting by heated water or sufficiency review.

shore-washing agents? For container-debris is there a systematic process to field assess shoreline impacts and then to identify mitigation measures (i.e., cleanup tactics) -such as modeled after the well- established Shoreline Cleanup Assessment Techniques (SCAT) for stranded oil? If yes, where is this guideline and who has been trained?

SHORELINE CLEANUP FOR OIL, As a container-debris generally results in a wide-range of The Panel will determine whether HAZARDOUS MATERIALS, AND types and amounts of HNS (e.g., hazardous it requires additional information CONTAINER DEBRIS- Shoreline materials/dangerous goods), who will provide this or clarification with respect to this Response to Hazardous Noxious specialized services for both on-shore and on-water information to inform its Substances (HNS recovery, and who will manage this mitigation measure? sufficiency review.

SHORELINE CLEANUP FOR OIL, Will there be an adequate number of willing shoreline The Panel will determine whether HAZARDOUS MATERIALS, AND workers to undertake a major cleanup of a wide-spread it requires additional information CONTAINER DEBRIS- Shoreline bunker oil spill and/or container debris field? Who is or clarification with respect to this

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Cleanup Workforce- Bunker Oil prepared to source, register, train, equip, supervise and information to inform its and Container-debris pay for a workforce that could be in the order of several sufficiency review.

hundred to a thousand people? Has a regional or provincial survey been done to determine public availability receptiveness, and composition for oil and for container debris cleanup?

SHORELINE CLEANUP FOR OIL, For bunker oil and/or container debris cleanup will there The Panel will determine whether HAZARDOUS MATERIALS, AND be adequate logistical support such as vehicles, vessels, it requires additional information CONTAINER DEBRIS- Logistics planes, camps to transport a large shoreline workforce to or clarification with respect to this

remote areas within the marine study area? If yes, who information to inform its will provide and manage these logistical services for a sufficiency review. container vessel? Does provision of such services depend on if there is an oil spill?

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SHORELINE CLEANUP FOR OIL, Are there waste management solutions for final disposal The Panel will determine whether HAZARDOUS MATERIALS, AND of oily wastes, container debris of both from a container it requires additional information CONTAINER DEBRIS- Waste vessel casualty? If yes, what waste volumes have been or clarification with respect to this Management considered in oil and in debris, and where are the information to inform its

facilities located for each of these waste streams? sufficiency review.

SHORELINE CLEANUP FOR OIL, Has there been any provincial or national exercises and The Panel will determine whether HAZARDOUS MATERIALS, AND plans for managing a major loss of containers and it requires additional information CONTAINER DEBRIS- Container resulting debris-field from a container vessel casualty or clarification with respect to this Vessel Exercises and Planning that entails: salvage services, waste management, information to inform its

logistics, incident management, workforce establishment, sufficiency review.

, ..

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hazardous material management, etc? If yes, when, where, and by who?

FINANCIAL RISK AND Will there be financial risks for participants in Unified The Panel will determine whether COMPENSATION - Financial Risk Command (agencies and First Nations) once a it requires additional information

shipowner (the Responsible Party) reaches its legal limit or clarification with respect to this of financial responsibility that results in the incident's information to inform its management and further expenditures being transferred sufficiency review. to government? If yes, what are these risks?

FINANCIAL RISK AND Will Canada's compensation regime for impacts from a The Panel will determine whether COMPENSATION - Compensation major container vessel casualty from its containers, it requires additional information for Container Vessel Non-oil debris, and/or wreckage fully compensate for natural or clarification with respect to this

Impacts resource damages, as well as to CNA subsistence information to inform its (noncommercial) and traditional fisheries? If yes, what sufficiency review. are these compensation avenues?

FINANCIAL RISK AND Will Canada's compensation regime for impacts from a The Panel will determine whether COMPENSATION - Compensation major container vessel casualty from its bunker oil fully it requires additional information for Container Vessel Bunker Oil compensate for natural resource damages, as well as to or clarification with respect to this Impacts CNA subsistence (non-commercial) and traditional information to inform its

fisheries? If yes, what are these compensation avenues? sufficiency review.

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CowichanTribes and Stz'unimus First Nation: Outstanding Information Requests

Topic /Issue Reference Information Request Rationale Rationale for requesting to EISGuidelines (proposed by (proposed by (or not) information

or EIS Cowichan Tribes and Cowichan Tribes and Stz'uminus First Stz'uminus First

Nation) Nation)

VOLUME 1: INTRODUCTION AND PROJECT INFORMATION

Section 7.0 Engagement and Consultation

There has been This is a comment about inadequate aboriginal the involvement of First involvement in the Nations in Port Metro technical component Vancouver's TAGs and of EIS preparation. preparation of the EIS. During previous This is not a completeness environmental reviews, issue. The Panel will including the Port determine whether it Metro Vancouver requires additional Deltaport 3 project, information or clarification First Nations were with respect to this funded to participate in information to inform its Technical Working sufficiency review. Group meetings and processes. The

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inadequate inclusion of aboriginal interests for the T2 proposal, including the selection by Port Metro Vancouver of only a subset of affected First Nations to participate in the Technical Advisory Groups (TAGs) has undermined the EIS process. This exclusion has important ramifications for the Scoping process, including the identification of Valued Components and establishment of baseline conditions, which took place at the outset of EIS preparation with

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little aboriginal involvement.

Inadequate p. 7-46 "As described further in There are other priority There is no requirement in aboriginal

Section 7.4 Section 7.4, the TAG concerns in addition to the EISGuidelines to focus

participation process focussed on the 4 which are listed, TAG's work on specific in EIS preparation four key areas identified e.g. Dungeness crabs topics. The Panel will

by Port Metro and migratory fish. determine whether it Vancouver: 1) Coastal requires additional Geomorphology, 2) information or clarification Productive Capacity, 3) with respect to this Biofilm and Shorebirds, information to inform its and 4) Southern sufficiency review. resident Killer Whales"

Please provide the rationale as to how the four key areas represent the breadth of aboriginal interests on Roberts Bank.

Inadequate p. 7-46 Each TAG consisted of Roberts Bank forms This is a comment about aboriginal leading technical part of the shared the involvement of First

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participation Section 7.4 experts from within Traditional Territory of Nations in Port Metro in EIS preparation regulatory agencies, 14 First Nations. An Vancouver's TAGs and

academia and NGOs. inclusive process is preparation of the EIS. Select aboriginal groups required to ensure that This is not a completeness were also invited to all aboriginal interests issue. The Panel will attend the TAG are considered. determine whether it sessions; however, they requires additional declined to participate." information or clarification

Please provide the with respect to this information to inform its

basis upon which sufficiency review. aboriginal groups were selected. Please provide rationale for excluding Cowichan Nation Alliance participation in the TAG process.

Selection of Appendix #177 identifies a Adequate consultation This item was not required Valued

7.2 -8, 10#177 "concern with how requires a by the EIS

Components cumulative effects are consideration of how does not address assessed and applied to the cumulative effects Guidelines. The Panel will

determine whether it Aboriginal rights impacts to rights", but of multiple projects requires additional

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the EIS fails to address may impact First information or clarification this issue. Why was Nations' future ability with respect to this cumulative effects on to exercise Aboriginal information to inform its the ability of First rights. sufficiency review. Nations to exercise

Aboriginal groups are Aboriginal rights not identified as a VC? encouraged to describe to

the Panel how past projects and the proposed project have/will potentially cumulatively impact First Nation's future ability to exercise asserted or established Aboriginal or Treaty rights.

The Agency has requested additional information on cumulative effects in its letter of July 31, 2015 to Port Metro Vancouver (page 8 , #13). This information should inform the cumulative environmental effects of

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the proposed project and may assist in understanding potential cumulative impacts on First Nation's future ability to exercise asserted or established Aboriginal or Treaty rights.

VOLUME 2: EFFECTS ASSESSMENT METHODS AND PHYSICAL SETTING

Section 8.0 Effects Assessment Methods

Inadequate Section Selection of Valued Selection of VCs The Agency has requested aboriginal

8.1.2 Components (VCs) establishes some of additional information on

participation addressed the question: the key parameters for Aboriginal Traditional in EISpreparation "Is the candidate VC of the scope of the EIS. Knowledge in its letter of

interest to the public, July 31, 2015 to Port Metro aboriginal groups or Vancouver (page 3, IR #8). governments?" See additional detail

Please provide the above.

process whereby it was The Agency did not determined that request additional a VC was of interest to information

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Topic/Issue Reference Information Request Rationale Rationale for requesting to EISGuidelines (proposed by (proposed by (or not) information


Nation) Nation)

aboriginal groups? regarding VC selection Which VCs were since there is already identified by aboriginal some information provided groups? in the EIS. The Panel will

determine whether it requires additional information or clarification with respect to VC selection to inform its sufficiency review.

Inadequate p. 8-5 "Screening Need to identify and Please see item above. aboriginal Candidate VCs -A include VCs based participation comprehensive list of upon aboriginal input in EISpreparation candidate VCs was

compiled based on the followingCommunity Knowledge and ATK" Please provide the list of specific VCs that were based on Community Knowledge and ATK

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Understanding Section 8.1.9.6 "Determination of Need to understand The Agency did not "Significance" Significance of Residual what are the request additional

Adverse Cumulative thresholds as they information for this item Effects. To determine dictate the since there is already significance, the classification of some information provided predicted future "significance" in the EIS. The Panel will condition of the VCwas determine whether it compared to the requires additional threshold of significance information or clarification defined for that VC." with respect to this

Please provide the information to inform its sufficiency review.

threshold criteria which were adopted.

VOLUME 3: BIOPHYSICAL EFFECTS ASSESSMENTS

Section 10.0 Biophysical Setting

Predation on p. 10-14 "Identified rockfish Improved accuracy The Agency did not rockfish predators include request additional

dolphins and porpoises, information for this item pinnipeds, SRKW, bald since there is already eagles, gulls and terns, some information provided juvenile and adult in the EIS in Section 16:

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salmon, dogfish, large Ongoing productivity of demersal fish, lingcod, Commercial, Recreational rockfish, skate and and Aboriginal Fisheries starry flounder." Effects Assessment. The

Please provide a more Panel will determine whether it requires

accurate list. additional information or Why were human clarification with respect to withdrawals (i.e. fishing) this information to inform excluded? its sufficiency review.

Section 13.0 Marine Fish Effects Assessment

Inadequate p. 13-4 "Marine fish species of First Nations The Agency has requested aboriginal particular interest were participated in the additional information on participation identified through Technical Working Aboriginal Traditional in EIS preparation discussions with Group process during Knowledge in its letter of

regulators and the Deltaport 3 July 31, 2015 to Port Metro Aboriginal Groups; input evaluation and Vancouver (page 3, #8). from scientific experts deserve a place at the

Technical gaps that may during the Technical Technical Tables for 2. Advisory Group (TAG) exist are directly related to

and Technical Working a sufficiency review that will be conducted by the

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Topic /Issue Reference Information Request Rationale Rationale for requesting I to EISGuidelines (proposed by (proposed by (or not) information


Nation) Nation)

Group workshops;" Panel once appointed.

What technical gaps exist within this process due to inadequate aboriginal participation?

VOLUME 5: ENVIRONMENTAL MANAGEMENT, ABORIGINAL RIGHTS AND INTERESTS, CONCLUSIONS AND SUMMARIES

Section 32.0 Potential or Established Aboriginal and Treaty Rights and Related Interests, Including Current Use of Lands and Resources for Traditional Purposes

Selection of Executive The EIS identifies Protection of aboriginal This appears to be an item Valued Summary, pp. 42- "Outdoor Recreation" rights should be · better addressed to Port Components 43 and "Labour Market" as emphasized as a Metro Vancouver given does not address "Valued Components", Valued Component, that they have determined Aboriginal rights saying "Valued not shifted to a side- how to determine and

components are the note characterize valued focus of the components. The Agency environmental did not request additional assessment for the information for this item purposes of evaluating since there is already Project-related effects". some information provided But the EIS classifies in the EIS. The Panel will

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"Potential or Established determine whether it Aboriginal and Treaty requires additional Rights and Related information or clarification Interests, Including with respect to this Current Use of Lands information to inform its and Resources for sufficiency review. Traditional Purposes" as an "Other effects assessment" undertaken "in addition to the assessment of intermediate and valued components".

Explain the rationale for this distinction: Why is the Protection of Aboriginal Rights not a Valued Component?

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panel rbt2 / commission rbt2 (ceaa/acee) cc · reference, at appendix i, and request that the...

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