Dear Minister McKenna, Mr. Hallman, Ms. Smith, Ms. Saely and Ms. Anderson:

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1 Scott A. Smith December 18, 2015 VIA AND COURIER Honourable Catherine McKenna Minister of the Environment 458 Confederation Building Ottawa, Ontario K1A 0A6 Ms. Heather Smith Vice President Operations, CEAA Place Bell Canada 160 Elgin Street, 22nd Floor Ottawa, Ontario K1A 0H3 Mr. Ron Hallman President, CEAA Place Bell Canada 160 Elgin Street, 22nd Floor Ottawa, Ontario K1A 0H3 Ms. Analyse Saely and Ms. Candace Anderson Crown Consultation Coordinators, Review Panels, CEAA 701 W Georgia Street Vancouver, British Columbia V7Y 1C6 analise.saely@ceaa-acee.gc.ca; candace.anderson@ceaa-acee.gc.ca Dear Minister McKenna, Mr. Hallman, Ms. Smith, Ms. Saely and Ms. Anderson: Re: Urgent request to address the unlawful environmental assessment of the Roberts Bank Terminal 2 Project, Canada s failure to consult T Sou-ke Nation, and informational deficiencies with the Addendum to the EIS Introduction and summary We write on behalf of our client, T Sou-ke Nation ( T Sou-ke ), in relation to the environmental assessment ( EA ) that you are carrying out for the Roberts Bank Terminal 2 Project ( Project ) under the Canadian Environmental Assessment Act, 2012 ( CEAA ). T Sou-ke is seriously concerned that: (i) marine shipping activities have been unlawfully excluded from the designated project that must be assessed under CEAA; (ii) it was not consulted about that or other key EA decisions; (iii) Project impacts on T Sou-ke and its Aboriginal title, rights, treaty rights, and interests ( Rights ) are not being properly assessed; and (iv) the addendum to the EIS submitted by the Port of Metro Vancouver ( PMV ) is fundamentally deficient in that it fails to assess the impacts of the Project on T Sou ke s current use of lands and resources for traditional purposes and, more generally, its Rights.

2 These errors have resulted in a legally deficient EA. That EA is highly vulnerable to a legal challenge, which could threaten the viability of the Project. To address these errors: 1. the Minister must amend the designated project being assessed under CEAA to include marine shipping activities, and revise the Terms of Reference ( TOR ) accordingly; 2. the Canadian Environmental Assessment Agency ( Agency ) must revise the EIS Guidelines accordingly; 3. prior to revising the Terms of Reference and EIS Guidelines, Canada must consult with T Sou-ke about those decisions; 4. more generally, Canada must take steps to initiate consultation with T Sou-ke in relation to the EA and how the Project may adversely impact T Sou-ke s Rights; and 5. the Agency must exercise its power under s. 39 of CEAA to require PMV to commission (and pay for) a Marine Traditional Use Study ( MTUS ) to be carried out by T Sou-ke to assess how the Project may impact T Sou-ke s Rights, and submit a revised Addendum containing this information. T Sou-ke acknowledges that you have inherited this unlawful situation as a result of decisions made by the previous government and former Environment Minister. There is, however, an opportunity to change course and correct these legal errors. To that extent, T Sou-ke would like to discuss these required steps with you during an in-person meeting as soon as possible. T Sou-ke will be adversely impacted by the Project T Sou-ke is located on southern Vancouver Island. T Sou-ke s reserve lands are centered around the Sooke Basin to the west of Victoria. T Sou-ke s Territory, which includes the land, air, and water therein, extends beyond its reserve lands for up to approximately 40 kilometers to the east and west, north past Sooke Lake, and to the south across the Northern Straits to the US Border. A map of T Sou-ke s Territory is attached. The increased volume of container ships associated with the Project will transit directly through the heart of T Sou-ke s Territory. T Sou-ke is concerned that the increase in container ship traffic associated with the Project, as well as accidents and malfunctions from those ships, has the potential to adversely affect and infringe its Rights. T Sou-ke is concerned that the Project, on its own and in combination with other existing and proposed activities, will contaminate its Territory, interfere with the exercise of its Rights, and will impact its members spiritual connection to their Territory, their physical well-being, and their identity as a Coast Salish peoples. Page 2

3 The former Environment Minister unlawfully excluded marine shipping activities from the designated project that must be assessed pursuant to CEAA The TOR does not include marine shipping activities in the designated project that must be assessed under CEAA. Rather, the TOR provides that marine shipping activities will be assessed as a factor pursuant to paragraph 19(1)(j) of CEAA, 1 but that factor will not be considered by the Minister in deciding whether the Project is likely to cause significant adverse environmental effects. 2 Nothing in CEAA empowered the former Environment Minister to treat a physical activity such as marine shipping that is incidental to a new marine terminal in this way. To the contrary, the Minister had no discretion as to what constitutes a designated project, which is a defined term in CEAA. A designated project under the CEAA means: one or more physical activities that (a) are carried out in Canada (b) are designated by regulations and (c) are linked to the same federal authority as specified in those regulations It includes any physical activity that is incidental to those physical activities. 3 The marine terminal component of the Project is part of the designated project that must be assessed by the Review Panel as it is located in Canada, designated by the regulations, and linked to the Agency. 4 However, the designated project that must be assessed also includes any physical activity incidental to the marine terminal, which means liable to happen as a consequence of 5 Marine shipping activities are indisputably incidental to the marine terminal. The Project consists of a new three-berth marine container terminal. It will provide an additional Final Roberts Bank Terminal 2 Project Review Panel Terms of Reference (April 2015) s 2.3 ( TOR ). 2 TOR, s Canadian Environmental Assessment Act, 2012 SC 2012, c 19, s 52 ( CEAA ) s 2(1). 4 Regulations Designating Physical Activities SOR/ , Schedule (sections 2 to 4) s 24(c). As indicated in the Environmental Impact Statement for the Project at Volume 1, p 6-1, the Agency determined that the Project met the definition of a designated project under the CEAA because the Project involves the construction and operation of a marine terminal designed to handle vessels larger than 25,000 deadweight tonnes, and will be located on lands not routinely or historically used as a marine terminal or designated for such use in a land use plan that has been the subject of public consultation. 5 The Concise Oxford English Dictionary, 11 th ed, sub verbo, incidental to, (Oxford University Press, New York: 2004) at p 719. Page 3

4 million twenty-foot equivalent units of container capacity per year at Roberts Bank. 6 The sole purpose of the marine terminal is to facilitate the berthing and unberthing of container ships. 7 Marine shipping from the terminal through the Salish Sea is essential for the terminal to have any utility. It goes without saying that marine shipping is liable to happen as a consequence of building a new marine terminal. Respectfully, the Agency, and subsequently the former Environment Minister, made legal errors by excluding marine shipping activities that are incidental to the marine terminal from the designated project that must be assessed under CEAA. The Minister s exclusion of marine shipping activities is puzzling given that they have been included in the scope of similar projects, including the Northern Gateway pipeline. 8 The Terms of Reference describe the designated project as the construction, operation and where relevant, decommissioning of project components and physical activities, 9 but limit the designated project to all components associated with the Roberts Bank Terminal 2 Project that fall within the care and control of the proponent. 10 Nothing in CEAA permits marine shipping activities which are incidental to a new marine terminal to be excluded from the designated project that must be assessed under CEAA because the shipping falls outside the care and control of PMV. As a result of the unlawful exclusion of marine shipping activities from the designated project, the TOR unlawfully omits a legally required assessment of the following factors: (1) environmental effects of marine shipping activities, including the environmental effects of malfunctions or accidents that may occur in connecting with marine shipping activities, and any cumulative effects that are likely to result from marine shipping activities in combination with other physical activities (such as other shipping activities in the Salish Sea) that have been or will be carried out; (2) the significance of the effects of marine shipping activities referred to in (1); 6 Port Metro Vancouver, Roberts Bank Terminal 2 Project Description (September 2013), p ii. 7 Roberts Bank Terminal 2 Project Environmental Impact Statement (March 27, 2015) s at p The Northern Gateway Project includes marine shipping activities in the Scope of the Project (Northern Gateway Panel Review, Volume 2, Appendix 4 Joint Review Panel Agreement and Terms of Reference Appendix: Terms of Reference, Part 1: Scope of the Project, at p. 407). Similarly, a memorandum of understanding between the federal and Newfoundland governments regarding the Voisey s Bay mine/mill development review process included evaluation of the shipping corridors from the mine/mill to existing shipping lanes off the east coast of Labrador, Citizens Mining Council of Newfoundland & Labrador Inc v Canada (Minister of the Environment), 163 FTR 36, 1999 CarswellNat 348 at para TOR, s TOR, s 1.3. Page 4

5 (3) comments from participants in the Review Panel hearing in relation to marine shipping activities; (4) mitigation measures in relation to marine shipping activities; and (5) alternative means of carrying out the marine shipping activities and the environmental effects of such alternatives. The requirement in s. 2.3(a) of the TOR to consider the environmental effects of marine shipping including accidents and malfunctions, any cumulative effects, the significance of those effects, and the other factors listed therein, not as s. 19 separate factors but somehow as a CEAA s. 19(1)(j) factor, is unlawful and does not cure the legal deficiencies highlighted above. Simply put, there is no legal basis to modify CEAA requirements in this way. The effects of this unlawful decision are made clear in s. 2.4 of the TOR which, confusingly and incorrectly, provides that the environmental effects of marine shipping are not environmental effects of the project for the purposes of the Minister s decision on whether the project is likely to cause significant adverse environmental effects and will not be subject to conditions to the proponent in any decision statement issued by the Minister under CEAA CEAA requires the Review Panel to provide the Environment Minister with a report containing its recommendations about, and the Minister is required to decide under CEAA, whether the designated project is likely to cause significant adverse environmental effects. 12 The Minister must then refer the designated project to the Governor in Council if she makes such a determination. 13 The Governor in Council must determine whether the significant adverse environmental effects can be justified 14 and, ultimately, whether the Project can go ahead. 15 However, because of the Agency and the former Environment Minister s errors, the Review Panel s report as well as the Minister and the federal cabinet s decisions will not consider or be based on any of the above-noted factors in relation to marine shipping activities. This means that significant adverse environmental effects likely to result from marine shipping activities will go unchecked. That situation is particularly alarming, given that PMV recently 11 TOR, s CEAA, ss 43, 47, 52(1). 13 CEAA, s 52(2). 14 CEAA, s 52(4). 15 CEAA, ss 6 & 7. Page 5

6 concluded in its Addendum to the EIS that no adverse effects of marine shipping activities associated with the Project are anticipated, with the exception of potential effects to southern resident killer whales. 16 In the Addendum, PMV concludes that southern resident killer whales have already been significantly adversely affected by past projects and activities; therefore, cumulative effects are expected to remain significant. 17 This unlawfully deficient EA simply cannot continue. It must be corrected. Respectfully, the Minister must amend the TOR and the Agency must revise the updated EIS Guidelines to correct these serious legal errors. Canada must initiate consultation with T Sou-ke before amending the TOR and EIS Guidelines, and continue to consult with it throughout the EA of the Project Marine shipping activities that are either part of the designated project or that will arise as a necessary consequence of it have the potential to adversely impact T Sou-ke s Rights. Canada therefore has a duty to consult T Sou-ke about the Project and, more specifically, about the EA it is carrying out in relation to it. Canada must take steps immediately to initiate consultation with T Sou-ke. The case law is clear that scoping decisions (determining what constitutes the designated project as well as the factors and scope of factors that must be assessed) trigger the Crown s duty to consult, which must be discharged before such decisions are made. 18 Canada must therefore consult T Sou-ke before the TOR and EIS Guidelines are amended, and continue to do so throughout the regulatory review and environmental assessment of the Project. The TOR makes clear that the Agency, or some other Crown actor, must initiate and carry out consultation with T Sou-ke. Section 3.7 of the TOR provides that the federal government maintains the duty to consult throughout the environmental assessment process and will be responsible for the following items: 16 Port Metro Vancouver, Roberts Bank Terminal 2 Project, Addendum to the Environmental Impact Statement Marine Shipping Supplemental Report, Executive Summary (October 2015) at p 3 [Emphasis added]. 17 Port Metro Vancouver, Roberts Bank Terminal 2 Project, Addendum to the Environmental Impact Statement Marine Shipping Supplemental Report, Executive Summary (October 2015) at p 3 [Emphasis added]. Note further that Trans Mountain also concluded in a recent EA it carried out for the Trans Mountain Expansion Project that marine shipping activities associated with its project will cause significant adverse environmental effects on the endangered southern resident killer whale population (Trans Mountain Expansion Project Application, Volume 1 Summary (December 2013) at p 1-47). 18 Nlaka pamux National Tribal Council v British Columbia (Environmental Assessment Office) 2011 BCCA 78, 2 CNLR 186 at para 97. Page 6

7 a. the validity of potential or established Aboriginal or Treaty rights asserted by an Aboriginal group or the strength of such claims; b. the scope of the Crown s duty to consult an Aboriginal group; c. whether the Crown has met its respective duty to consult or accommodate in respect of rights recognized and affirmed by section 35 of the Constitution Act, 1982; d. whether the Project would be an infringement of potential or established Aboriginal or Treaty rights; and e. any matter of Treaty interpretation. 19 Furthermore, although the TOR empowers the Review Panel to consider and assess potential impacts on T Sou-ke s Rights, including environmental effects that may correspondingly cause adverse impacts on T Sou-ke s Rights, 20 the Review Panel has not been empowered to consult with T Sou-ke or to make conclusions or recommendations in relation to the Crown s duty to consult and accommodate T Sou-ke or potential infringements of T Sou-ke s Rights. 21 The Agency must require PMV to carry out a Marine Traditional Use Study and revise the Addendum The environmental effects that must be assessed pursuant to s. 5(1)(c) of CEAA include an effect occurring in Canada of any change that may be caused to the environment on (iii) the current use of lands and resources for traditional purposes 22 A project-specific Marine Traditional Use Study ( MTUS ) is the way that T Sou-ke, as a First Nation, collects information and knowledge about how its members use the lands and resources in its Territory for traditional purposes, and assesses potential impacts of marine shipping activities that are part of the designated project on such uses and, more generally, on its Rights. 19 TOR s TOR, ss TOR, s Emphasis added. Page 7

8 Without the benefit of a project-specific MTUS, PMV will not be in a position to provide the Agency or the Review Panel with the information required by s. 5(1)(c) of CEAA. The Review Panel will not, therefore, be in a position to assess those environmental effects and impacts on T Sou-ke s Rights. Even if the designated project does not include marine shipping activities, which is expressly denied, a project-specific MTUS is required for PMV to satisfy the information required by s. 17 of the EIS Guidelines. Importantly, no other party can provide the traditional knowledge and information required to meet section 5(1)(c) and s. 17 of the EIS guidelines as they relate to T Sou-ke. Previous MTUSs that T Sou-ke has carried out for other projects are not an appropriate means for PMV or Canada to assess the impacts of marine shipping on its use of lands and resources for traditional purposes and, more generally, on its Rights. Those studies are proprietary, and T Sou-ke has requested that PMV not attempt to use them for the EA of the Project. In September, T Sou-ke submitted a budget to PMV requesting capacity funding to pay for T Sou-ke s costs of commissioning a project-specific MTUS. In response, PMV effectively denied this request by offering T Sou-ke capacity funding that would only cover a fraction of the costs associated with conducting a MTUS that properly assesses the environmental effects and impacts of the Project on T Sou-ke s Rights. No project-specific MTUS has been commissioned. Moreover, PMV relied on a previous MTUS report T Sou-ke commissioned for a different project, and which T Sou-ke specifically told PMV it was not authorized to use for the purposes of this Project. T Sou-ke therefore requests that the Agency: (i) exercise its power pursuant to s. 39 of CEAA to require PMV to pay for a MTUS, to be carried out by T Sou-ke, in relation to the Project; (ii) require PMV to retract all of the information provided in its Addendum to the EIS Marine Shipping Supplemental Report in relation to T Sou-ke; and (iii) require PMV to resubmit the Addendum once the MTUS has been completed and PMV has worked with T Sou-ke to incorporate relevant findings of the MTUS into its Addendum. The Agency should then update the information in its Crown consultation log based on the new information to be provided in the revised Addendum. Page 8

9 Conclusion T Sou-ke is committed to participating in the EA for the Project and to working with the Minister, the Agency and the Review Panel to remedy the fundamental legal deficiencies outlined in this letter. Please have your staff contact me as soon as possible to set up a meeting to discuss these important and time sensitive issues. Yours sincerely, GOWLING LAFLEUR HENDERSON LLP Scott A. Smith Aboriginal and Environmental Law c: Robin Silvester, President and CEO, PMV Bryan Nelson, Manager, Project Development, PMV Debra Myles, Panel Manager, Roberts Bank Terminal 2 Project, CEAA Irene Gendron, Director and General Counsel, CEAA Lisa Walls, Director, Pacific and Yukon Region, CEAA V43206\VAN_LAW\ \9 Page 9

10 T SOU-KE TRADITIONAL TERRITORY MAP