DONOVAN & COMPANY Barristers and Solicitors

61h Floor, 73 Water Street

Vancouver, BC V6B 1 A 1 Telephone (604) 688-4272 Fax (604) 688-4282 Website: www. aboriginal-law. com Reply lo: .

June 10, 2015

VIA EMAIL: RobertsBank@ceaa-acee.gc.ca

Canadian Environmental Assessment Agency 22nd Floor, 160 Elgin Street Ottawa ON K1A OH3

Allan Donovan* Karim Ramji* James Hickling Jesse McCormick~ Hana Boye

Merrill W. Shepardt Jennifer Griffith Niki Sharma John Burns Amy Jo Scherman

'Denotes Law Corporation talso of the NWT Bar ~also of the ON Bar

Attention: Debra Myles, Panel Manager- Roberts Bank Terminal 2 Project

Dear Ms. Myles:

Re: Roberts Bank Terminal 2 Environmental Impact Statement- Completeness

Please find enclosed the comments of our client, the Penelakut Tribe, on the Completeness of the Port Metro Vancouver Environmental Impact Statement for the Roberts Bank Terminal 2 Project.

If you have any questions or concerns, please do not hesitate to contact us.

Yours truly,

DONOVAN & COMPANY Jj

Jemnifer Griffith JG/

Cc: Port Metro Vancouver, Attn: Jemma Scobie, (Aboriginal Consultation) Jemma. Scoble@portmetrovancouver. com

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PORT METRO VANCOUVER ROBERTS BANK TERMINAL 2

ENVIRONMENTAL IMPACT STATEMENT

JUNE 10, 2015

PENELAKUT TRIBE COMMENTS ON COMPLETENESS

I. THE PENELAKUT PEOPLE AND THEIR INTERESTS

The Pen~lakut People

The Penelakut Tribe ("Penelakut") is comprised of descendants of the historic Cowichan Nation, with a Traditional Territory that encompasses the Project site. The Environmental Impact Statement (the "EIS") misrepresents this when it states: "The Penelakut Tribe's asserted traditional territory is located on the central side of Vancouver Island and includes Penelakut Island, Galiano Island, Tent Island, and the area near the mouth of the Chemainus River" (s. 32.1.1.1 0, EIS p. 32-14).

Penelakut Tribe Involvement in Project Review

The Penelakut Tribe has participated in a review of the Project as part of the Cowichan Nation Alliance (CNA}, and has provided information to the proponent, Port Metro Vancouver, including two reports:

• Port Metro Vancouver: Roberts Bank Termina/2: Cowichan Occupation and Use (Kennedy and Bouchard Research Consultants 2014); and

• Port Metro Vancouver: Roberts Bank Termina/2: Cowichan Nation Alliance Current and Planned Use (Hwitsum Consulting 2014).

Penelakut Concerns About Project Impacts

The Penelakut Tribe is concerned about Project impacts on the marine environment, on marine vegetation, invertebrates and fish, on marine and migratory birds, and on the Penelakut Tribe's access to marine resources. As such, the Penelakut Tribe expects the EIS to include adequate information and rationales to provide an understanding of Project impacts on these, as well as on the Penelakut Tribe's exercise of its Aboriginal rights in the Project area.

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Box 360 C h e m a inu s, BC VOR 1 KO Ph o n e: (250) 246-2321 Fax: (2 50) 246-2725

II. COMMENTS ON COMPLETENESS

The EIS contains information gaps and lacks a supportable rationale for assessing effects of the Project on the Penelakut Tribe.

Effects Assessment Thresholds

The EIS categorizes changes in productivity of between 0% to 5% as negligible, changes between 6% to 30% as minor, and changes between 31% and 60% as moderate (see for example EIS p. 12-44). The rationale for categorizing a change of less than 5% as negligible is that this falls within the range of error that can occur in the assessment. The rationale for categorizing changes between 6% and 30% as minor is framed vaguely by reference to "the range of natural ecosystem variability" (EIS p. 15-65). No rationale is provided for characterizing changes between 31% and 60% as moderate. The EIS should provide a more concise rationale for dismissing changes of up to 30% in productivity as minor and for changes of up to 60% as moderate.

Effects of Decreased Orange Sea Pen Productivity - s. 12.6.3.4

The EIS predicts a 55% decrease in orange sea pen productivity, mostly from direct habitat impacts from construction and dredging (EIS p. 12-67).

Sea pens are described in the EIS as "suspension feeders that eat small organic particulate material, larvae, and other zooplankton" and that, in turn, "are consumed by several benthic predators .. . ". Further, the EIS identifies sea pen presence as increasing habitat complexity, benefitting fish and other macro-invertebrate species, and Dungeness crab (EIS p. 1 0-5).

The EIS does not explain how or whether the reduction in sea pen productivity may affect fish, other macro-invertebrate species or Dungeness crab.

If this was not considered, the EIS should state this. If no effect is predicted, the rationale for this finding should be provided.

Information About Penelakut Practices - s. 32.2.4.5

The EIS appears to have overlooked the practices identified by the Penelakut Tribe as being exercised in the Local Assessment Area (LAA). The Port Metro Vancouver: Roberts Bank Terminal 2: Cowichan Nation Alliance Current and Planned Use Report details the species taken by the Penelakut Tribe pursuant to Traditional Use and DFO Aboriginal Communal Licences. The information provided indicates that these species are taken within the CRA Fisheries Proposal Regional Assessment Area (RAA).

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The CRA RAA encompasses and includes the Local Assessment Area (LAA). Yet, the EIS states that "present CNA harvesting of crab, prawns, clams (manila, butter, littleneck), oysters, and other shellfish for FSC purposes is described as occurring generally within the RAA for CRA Fisheries" (EIS p. 32-74) . This is not the only instance in which the EIS refers to Penelakut Tribe practices within the RAA and suggests that this precludes them from occurring within the LAA.

Penelakut harvesting and fishing in the RAA includes harvesting and fishing in the LAA. As recently as this spring, Penelakut has taken hundreds of crabs from the LAA. Penelakut also fished in the LAA in the recent sockeye runs, in the back eddy caused by a falling tide in the area between the existing Roberts Bank terminal and Canoe Passage.

The EIS identifies a potential adverse effect during construction and operation on access to preferred or domestic FSC crab harvesting locations in the marine invertebrates LAA, but only for the Tsawassen First Nation and the Musqueam First Nation (s. 32.2.6.1, EIS p. 32-104).

Given that the Penelakut Tribe harvests crabs in the LAA, the EIS should include a rationale for the conclusion that the Penelakut Tribe will not be impacted by the potential adverse effect during construction and operation on access to preferred or domestic FSC crab harvesting locations in the marine invertebrates LAA.

Further, the EIS should provide a rationale for why no accommodation should be provided to the Penelakut Tribe for this effect as a mitigation measure (Table 32-6, EIS p. 32-120).

Finally, the EIS should provide a rationale for why the potential adverse effect, during construction and operation, on access to preferred or domestic FSC crab harvesting locations in the marine invertebrates LAA does not amount to a potential impact on the Penelakut Tribe aboriginal right to harvest crab (s. 32.3.2.2, EIS p. 32-136).

Effects of TSS on Salmon Migration - s. 13.6.2.1

The EIS identifies that construction of the Project will create elevated concentrations of TSS in the LAA. The EIS states that "Effects of TSS on Pacific salmon productivity are more likely to be behavioural than injurious, and are therefore difficult to quantify. Both adult and juvenile salmon species .. . will thus likely avoid areas of high TSS 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

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should provide an assessment of the impact of avoidance behaviour on the Aboriginal sockeye fishery.

Information About Commercial Recreational and Aboriginal Fisheries - s. 16.2.1

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?

Information About Food Security for Aboriginal People-s. 27.5.7.1

The EIS states: "Despite the importance of understanding traditional food consumption, limited data are available on subsistence harvesting in the LAA" (EIS p. 27-35). This represents a clear information gap and should be identified as such in the EIS.

The EIS should provide an explanation of the steps taken by the proponent, Port Metro Vancouver, to obtain information on subsistence harvesting in the LAA and a rationale for proceeding to assess impacts to food security of Aboriginal people despite the absence of this information.

Ill. SUMMARY OF SPECIFIC INFORMATION REQUIRED

In order for the EIS to be complete and to allow for an assessment of effects on the Penelakut Tribe, the following specific information is required:

• The rationale for dismissing changes of up to 30% in productivity as minor and for changes of up to 60% as moderate;

• An explanation of how or whether the reduction in sea pen productivity may have an effect on fish, other macro-invertebrate species or Dungeness crab;

• A rationale for the conclusion that the Penelakut Tribe will not be impacted by the potential adverse effect during construction and operation on access to preferred or domestic FSC crab harvesting locations in the marine invertebrates LAA;

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• A rationale for why no accommodation should be provided to the Penelakut Tribe for this effect as a mitigation measure;

• A rationale for why the potential adverse effect during construction and operation on access to preferred or domestic FSC crab harvesting locations in the marine invertebrates LAA does not amount to a potential impact on the Penelakut Tribe aboriginal right to harvest crab;

• An assessment of whether TSS avoidance behaviour will have an effect on migratory paths of pacific salmon, in particular the sockeye salmon that migrate through Canoe Passage;

• An assessment of whether TSS avoidance behaviour will have a negative impact on the Aboriginal sockeye fishery;

• A more detailed rationale to justify the failure to assess the eulachon, sturgeon, shrimp and octopus fishery;

• An explanation of the steps taken to obtain information on subsistence harvesting in the LAA; and

• A rationale for proceeding to assess impacts to food security of Aboriginal people without this information.

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