LAWSON LUNDELL Suite 1600 Cathedral Place August 22, 2019 VIA EMAIL Review Panel Secretariat, Roberts Bank Terminal 2 Project c/o Canadian Environmental Assessment Agency 22nd Floor, 160 Elgin St. Ottawa, ON K1A OH3 Attention: Cindy Parker, Review Panel Manager Dear Madam: Re: Roberts Bank Terminal 2 Project -Review Panel Proceeding Will Shaw We write further to the letter from the T'Sou-ke Nation (T'Sou-ke) to the Review Panel dated August 16, 2019 with respect to the Vancouver Fraser Port Authority's (VFPA) use of the T'Sou-ke's marine traditional use study prepared for the Trans Mountain Expansion Project. On January 15, 2019, the VFPA provided the Review Panel Secretariat with a copy of a VFPA letter to Chief Gordon Planes and Councillors for T'Sou-ke that outlined the VFPA's efforts to obtain traditional use information from T'Sou-ke. We enclose herewith a copy of the VFPA's letter, along with a copy of the VFPA's email of January 15, 2019 to T'Sou-ke and the Review Panel Secretariat enclosing the letter. It appears the VFPA's letter has not been included on the Canadian Environmental Assessment Agency Registry for the Roberts Bank Terminal 2 Project. We believe that the information contained in that letter is necessary to respond to T'Sou-ke's position set out in their letter of August 16, 2019. Accordingly, we request that the VFPA's letter dated January 15, 2019 be placed on the Registry. Yours very truly, LAWSON LUNDELL Will Shaw WJS Enc. cc. Chief Gordon Planes, T'Sou-ke Nation (via Email) ■ lawsonlundell.com 14230.122384.WJS.17104762.1 Vancouver I Calgary I Yellowknife I Kelowna Lawson Lundell is a Limited Liability Partnership <contact information removed> <contact information removed> <Original signed by>
Transcript
LAWSON LUNDELL
Suite 1600 Cathedral Place
August 22, 2019
VIA EMAIL
Review Panel Secretariat, Roberts Bank Terminal 2 Project c/o Canadian Environmental Assessment Agency 22nd Floor, 160 Elgin St. Ottawa, ON K1A OH3
Attention: Cindy Parker, Review Panel Manager
Dear Madam:
Re: Roberts Bank Terminal 2 Project -Review Panel Proceeding
Will Shaw
We write further to the letter from the T'Sou-ke Nation (T'Sou-ke) to the Review Panel dated August 16, 2019 with respect to the Vancouver Fraser Port Authority's (VFPA) use of the T'Sou-ke's marine traditional use study prepared for the Trans Mountain Expansion Project.
On January 15, 2019, the VFPA provided the Review Panel Secretariat with a copy of a VFPA letter to Chief Gordon Planes and Councillors for T'Sou-ke that outlined the VFPA's efforts to obtain traditional use information from T'Sou-ke. We enclose herewith a copy of the VFPA's letter, along with a copy of the VFPA's email of January 15, 2019 to T'Sou-ke and the Review Panel Secretariat enclosing the letter.
It appears the VFPA's letter has not been included on the Canadian Environmental Assessment Agency Registry for the Roberts Bank Terminal 2 Project. We believe that the information contained in that letter is necessary to respond to T'Sou-ke's position set out in their letter of August 16, 2019. Accordingly, we request that the VFPA's letter dated January 15, 2019 be placed on the Registry.
Yours very truly,
LAWSON LUNDELL
Will Shaw WJS Enc. cc. Chief Gordon Planes, T'Sou-ke Nation (via Email)
■ lawsonlundell.com 14230.122384.WJS.17104762.1
Vancouver I Calgary I Yellowknife I Kelowna Lawson Lundell is a Limited Liability Partnership
<contact information removed>
<contact information removed>
<Original signed by>
PORT of Vra vancouver
Via Canada Post and email
January 14, 2019
Chief Gordon Planes and Councillors
Dear Chief Planes and Councillors:
Vancouver Fraser Port Authority 100 The Pointe, 999 Canada Place Vancouver, B.C. Canada V6C 3T4 portvancouver.com
Re: Roberts Bank Terminal 2 Project — Letter of Response
I write in response to your letter of October 10, 2018 to Robin Silvester, who has asked me to respond on his behalf. A response to each of the concerns raised in your letter is provided below. We look forward to next steps, including taking part in a meeting with T'Sou-ke Nation ("T'Sou-ke"), to better understand your concerns and work towards a mutually agreeable consultation approach.
Request for a meeting We acknowledge your request to meet with Robin Silvester. In our most recent letter of February 20, 2018 we responded to your request to meet and proposed a meeting between T'Sou-ke Nation and the Director responsible for the environmental assessment for the Roberts Bank Terminal 2 ("RBT2") Project ("Project"). As I am now the person within the VFPA with overall responsibility for the environmental assessment of the Project, including engagement and consultation, I would like to renew the offer of a meeting.
On March 12, 2018, we further followed up regarding arrangements for a meeting between T'Sou-ke and the Director responsible for the environmental assessment for the Project. In this letter we offered to provide funding to cover T'Sou-ke's costs of meeting in either Vancouver or Victoria. The VFPA did not receive a response from T'Sou-ke to this request and offer. The VFPA remains interested in a meeting with T'Sou-ke, and re-extends the invitation for you to meet with our current Director responsible for the environmental assessment for the Project, myself. As you indicate in your October 10, 2018 letter that you are interested meeting with the VFPA, we will be in touch to establish a time to meet.
VFPA's use of T'Sou-ke's knowledge With respect to the VFPA's use of T'Sou-ke's knowledge in the Marine Shipping Addendum ("MSA"), the VFPA would like to clarify the events with respect to the preparation of the MSA. A summary of those events is as follows:
• On May 25, 2015, the VFPA wrote to T'Sou-ke explaining that the VFPA was considering the effects of marine shipping associated with the Project on the current use of lands and resources for traditional purposes (Current Use) by T'Sou-ke. Pursuant to the Updated Environmental Impact Guidelines, the VFPA was directed by the Canadian Environmental Assessment Agency to conduct an assessment of marine shipping associated with the Project by maximizing the use of existing relevant material, including, specifically, past or ongoing environmental assessments and Aboriginal
Cana&
('ÐPORT ofvancouver
Vancouver Fraser Port Authority100 The Pointe, 999 Canada PlaceVancouver, B.C. Canada V6C 3T4portvancouver.com
Via Canada Post and email
January 74, 2019
Chief Gordon Planes and Councillors
Dear Chief Planes and Councillors
Re: Roberts Bank Terminal 2 Project - Letter of Response
I write in response to your letter of October 10, 2018 to Robin Silvester, who has asked meto respond on his behalf. A response to each of the concerns raised in your letter is providedbelow. We look forward to next steps, including taking part in a meeting with T'Sou-ke Nation("T'Sou-ke"), to better understand your concerns and work towards a mutually agreeableconsultation approach.
Request for a meetingWe acknowledge your request to meet with Robin Silvester. In our most recent letter ofFebruary 20, 2OIB we responded to your request to meet and proposed a meeting betweenT'Sou-ke Nation and the Director responsible for the environmental assessment for theRoberts BankTerminal 2 ("RBT2") Project ("Project"). As I am now the person within the VFPAwith overall responsibility for the environmental assessment of the Project, includingengagement and consultation, I would like to renew the offer of a meeting.
On March 12, 2018, we further followed up regarding arrangements for a meeting betweenT'Sou-ke and the Director responsible for the environmental assessment for the Project. Inthis letter we offered to provide funding to cover T'Sou-ke's costs of meeting in eitherVancouver or Victoria. The VFPA did not receive a response from T'Sou-ke to this request andoffer, The VFPA remains interested in a meeting with T'Sou-ke, and re-extends the invitationfor you to meet with our current Director responsible for the environmental assessment forthe Project, myself. As you indicate in your October 10, 2018 letter that you are interestedmeeting with the VFPA, we will be in touch to establish a time to meet.
VFPA's use of T'Sou-ke's knowledgeWith respect to the VFPA's use of T'Sou-ke's knowledge in the Marine Shipping Addendum("MSA"), the VFPA would like to clarify the events with respect to the preparation of the MSA.A summary of those events is as follows:
On May 25,2OL5, the VFPA wrote to T'Sou-ke explaining that the VFPA was consideringthe effects of marine shipping associated with the Project on the current use of landsand resources for traditional purposes (Current Use) by T'Sou-ke. Pursuant to theUpdated Environmental Impact Guidelines, the VFPA was directed by the CanadianEnvironmental Assessment Agency to conduct an assessment of marine shippingassociated with the Project by maximizing the use of existing relevant material,including, specifically, past or ongoing environmental assessments and Aboriginal
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C¿nadä
<contact information removed>
T'Sou-ke Nation January 14, 2019 Page 2 of 4
traditional knowledge reports. In its May 25 letter, the VFPA requested information from T'Sou-ke regarding Current Use, fisheries, or potential effects from marine shipping, stating the following:
"It is expected that information required for the assessment can be gathered from existing materials, and PMV is currently compiling oral information from the Application to the National Energy Board and the T'Sou-ke First Nation oral hearing transcript for the Trans Mountain Expansion Project. Is there any additional current use and fisheries information that you would like PMV to consider in the assessment?"
• Between May 28 and June 27, the VFPA made multiple attempts to contact T'Sou-ke by phone and e-mail regarding the May 25 letter. While the VFPA was successful in connecting with T'Sou-ke on two occasions, there was no response from T'Sou-ke to VFPA's request to meet.
• On June 27, 2015, T'Sou-ke responded to the VFPA's May 25, 2015 letter. T'Sou-ke outlined its concern with the approach of using written evidence, including the "T'Sou-ke Nation Traditional Marine Resource Knowledge and Use Study Report," with the National Energy Board (NEB) for the Trans Mountain Expansion Project and stated that it had not authorized the VFPA to use it for the environmental assessment of the Project. T'Sou-ke agreed to the VFPA's offer to set up a meeting in order to discuss how the VFPA could assist T'Sou-ke in preparing a Project-specific marine traditional use study (MTUS) and to discuss capacity funding.
• On July 20, 2015, having had no response from T'Sou-ke to several VFPA requests to meet, the VFPA provided T'Sou-ke with a draft section of the MSA entitled "T'Sou-ke Nation Current Use of Lands and Resources for Traditional Purposes." The VFPA requested that T'Sou-ke confirm the accuracy of the information presented in the summary of traditional use and identify any sensitive information that should be removed from the final MSA. The VFPA continued to call and e-mail T'Sou-ke to establish a time to meet and to request T'Sou-ke's comments on the draft traditional use summary, but VFPA did not receive any comments on the traditional use summary from T'Sou-ke by the requested deadline.
• On August 18, 2015, the VFPA and T'Sou-ke had a meeting to discuss the marine shipping associated with RBT2 and the scope of work for the assessment. At that meeting the VFPA asked T'Sou-ke for details with respect to the type of study, timelines and price associated with an RBT2-specific MTUS. The parties discussed these issues. The VFPA also indicated at this time that the MSA would be finalized in the near future, and that the timeline for the inclusion of new information in this report would be a challenge. The parties discussed options for addressing this timing challenge, and T'Sou-ke indicated that they might consider providing comments on the draft summary of traditional use sent on July 20, 2015.
T'Sou-ke NationJanuary 14,20t9Page 2 of 4
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traditional knowledge reports. In its May 25 letter, the VFPA requested informationfrom T'Sou-ke regarding Current Use, fisheries, or potential effects from marineshipping, stating the following:
"It is expected that information required for the assessment canbe gathered from existing materials, and PMV is currentlycompiling oral information from the Application to the NationalEnergy Board and the T'Sou-ke First Nation oral hearingtranscript for the Trans Mountain Expansion Project. Is there anyadditional current use and fisheries information that you wouldlike PMV to consider in the assessment?"
Between May 28 and June 27,the VFPA made multiple attempts to contactT'Sou-keby phone and e-mail regarding the May 25 letter. While the VFPA was successful inconnecting with T'Sou-ke on two occasions, there was no response from T'Sou-ke toVFPA's request to meet.
On June 27,2OL5, T'Sou-ke responded to the VFPA's May 25,2015 letter, T'Sou-keoutlined its concern with the approach of using written evidence, including the"T'Sou-ke Nation Traditional Marine Resource Knowledge and Use Study Report," withthe National Energy Board (NEB) for the Trans Mountain Expansion Project and statedthat it had not authorized the VFPA to use it for the environmental assessment of theProject, T'Sou-ke agreed to the VFPA's offer to set up a meeting in order to discusshow the VFPA could assist T'Sou-ke in preparing a Project-specific marine traditionaluse study (MTUS) and to discuss capacity funding.
On July 20, 2015, having had no response from T'Sou-ke to several VFPA requests tomeet, the VFPA provided T'Sou-ke with a draft section of the MSA entitled "T'Sou-keNation Current Use of Lands and Resources for Traditional Purposes." The VFPArequested that T'Sou-ke confirm the accuracy of the information presented in thesummary of traditional use and identify any sensitive information that should beremoved from the final MSA, The VFPA continued to call and e-mail T'Sou-ke toestablish a time to meet and to request T'Sou-ke's comments on the draft traditionaluse summary, but VFPA did not receive any comments on the traditional use summaryfrom T'Sou-ke by the requested deadline.
On August 18, 2015, the VFPA and T'Sou-ke had a meeting to discuss the marineshipping associated with RBT2 and the scope of work for the assessment. At thatmeeting the VFPA asked T'Sou-ke for details with respect to the type of study,timelines and price associated with an RBT2-specific MTUS. The parties discussedthese issues. The VFPA also indicated at this time that the MSA would be finalized inthe near future, and that the timeline for the inclusion of new information in this reportwould be a challenge. The parties discussed options for addressing this timingchallenge, and T'Sou-ke indicated that they might consider providing comments onthe draft summary of traditional use sent on July 20, 2015.
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T'Sou-ke Nation January 14, 2019 Page 3 of 4
• After the meeting on August 18, the VFPA followed up with T'Sou-ke regarding T'Sou-ke's MTUS proposal for an MTUS specific to RBT2-associated marine shipping. On September 14, 2015, T'Sou-ke wrote the VFPA with a proposal and budget for the work (the "MTUS Proposal"). In the September 14 letter, T'Sou-ke also requested capacity funding for future engagement with the VFPA.
■ On September 25, 2015, the VFPA responded to the MTUS Proposal and T'Sou-ke's request for capacity funding. The letter indicated that after careful review of the MTUS Proposal, the VFPA had formed the opinion that the scope of work indicated in that study was more extensive than required given the nature of the information requested. The VFPA offered the T'Sou-ke funding for an MTUS and capacity funding, recognizing that these amounts were less than those requested by T'Sou-ke. In this letter, the VFPA further noted that it would be finalizing the Marine Shipping Addendum in the near future and would require the final MTUS report by October 9, 2015. The VFPA also stated the following:
"You have expressed concern about the use of the TMUS submitted to the NEB for the Trans Mountain Expansion project as a source of information in the T'Sou-ke Nation's current use in the marine shipping area. At your request we will remove any reference to that report. Ms. Sinead Deery will be following up with you to determine whether any changes are requested." [Emphasis added]
• Ms. Deery called T'Sou-ke on September 29, September 30 (twice), October 1, October 5, and October 6, 2015, but received no response. In addition, she wrote a follow up email on October 5, 2015 with respect to whether T'Sou-ke would want any changes to the T'Sou-ke's traditional use summary contained in the Project Marine Shipping Addendum, as provided to T'Sou-ke in July 2015, but did not receive a response to those phone calls or that email.
The VFPA disagrees with the manner in which T'Sou-ke has characterized these events in your October 10, 2018 letter. As the foregoing summary indicates, the VFPA provided T'Sou-ke with several opportunities to confirm that T'Sou-ke's traditional use information contained in the MSA was accurate and whether it should be changed or removed, and that T'Sou-ke did not provide that confirmation. The VFPA wishes to note that the VFPA removed information from the MSA at the request of Indigenous groups where those requests had been confirmed by the time of filing of the MSA. The VFPA made sincere efforts to provide T'Sou-ke with the same opportunity. In light of the events outlined above, it is the VFPA's position that it has conducted itself in a fair and reasonable manner.
Request for capacity funding and Marine Traditional Use Study funding With respect to T'Sou-ke's request for funding for an MTUS and capacity funding in relation to marine shipping associated with the Project, the VFPA continues to be prepared to provide such funding to support T'Sou-ke's participation in the RBT2 Project and completion of a MTUS. We will follow up regarding T'Sou-ke's request for funding by way of a separate letter.
T'Sou-ke NationJanuary 14, 2OI9Page 3 of 4
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After the meeting on August 18, the VFPA followed up with T'Sou-ke regardingT'Sou-ke's MTUS proposal for an MTUS specific to RBT2-associated marine shipping.On September L4, 2OI5, T'Sou-ke wrote the VFPA with a proposal and budget for thework (the "MTUS Proposal"). In the September 14 letter, T'Sou-ke also requestedcapacity funding for future engagement with the VFPA.
On September 25, 2015, the VFPA responded to the MTUS Proposal and T'Sou-ke'srequest for capacity funding. The letter indicated that after careful review of the MTUSProposal, the VFPA had formed the opinion that the scope of work indicated in thatstudy was more extensive than required given the nature of the information requested.The VFPA offered the T'Sou-ke funding for an MTUS and capacity funding, recognizingthat these amounts were less than those requested by T'Sou-ke. In this letter, theVFPA further noted that it would be finalizing the Marine Shipping Addendum in thenear future and would require the final MTUS report by October 9,2015. The VFPAalso stated the following:
"You have expressed concern about the use of the TMUSsubmitted to the NEB for the Trans Mountain Expansion projectas a source of information in the T'Sou-ke Nation's current usein the marine shipping area. At your request we will remove anyreference to that report. Ms. Sinead Deerv will be following upwith you to determine whether anv changes are reouested."IEmphasis added]
Ms. Deery called T'Sou-ke on September 29, September 30 (twice), October 1, October5, and October 6, 2075, but received no response, In addition, she wrote a follow upemail on October 5, 2015 with respect to whether T'Sou-ke would want any changesto the T'Sou-ke's traditional use summary contained in the Project Marine ShippingAddendum, as provided to T'Sou-ke in July 2OL5, but did not receive a response tothose phone calls or that email,
The VFPA disagrees with the manner in which T'Sou-ke has characterized these events in yourOctober 10, 2018 letter. As the foregoing summary indicates, the VFPA provided T'Sou-kewith several opportunities to confirm that T'Sou-ke's traditional use information contained inthe MSA was accurate and whether it should be changed or removed, and that T'Sou-ke didnot provide that confirmation. The VFPA wishes to note that the VFPA removed informationfrom the MSA at the request of Indigenous groups where those requests had been confirmedby the time of filing of the MSA. The VFPA made sincere efforts to provide T'Sou-ke with thesame opportunity. In light of the events outlined above, it is the VFPA's position that it hasconducted itself in a fair and reasonable manner.
Request for capacity funding and Marine Traditional Use Study fundingWith respect to T'Sou-ke's request for funding for an MTUS and capacity funding in relationto marine shipping associated with the Project, the VFPA continues to be prepared to providesuch funding to support T'Sou-ke's participation in the RBT2 Project and completion of aMTUS. We will follow up regarding T'Sou-ke's request for funding by way of a separate letter.
T'Sou-ke Nation January 14, 2019 Page 4 of 4
We look forward to the opportunity to meet with you in person in the near future. As indicated in your letter, we will be in touch with Ms. Thut to arrange a meeting in person at a mutually agreeable time.
Yours truly, VAN7 R FRASER PORT T AUTHORITY
•
Bryan Nelson Director, Infrastructure Sustainability
cc: Michelle Thut, Administrator, T'Sou-ke Nation (via email) Cindy Parker, Panel Manager, Roberts Bank Terminal 2 Project, CEAA (via email)
T'Sou-ke NationJanuary 14,2079Page 4 of 4
We look forward to the opportunity to meet with you in person in the near future. As indicatedin your letter, we will be in touch with Ms. Thut to arrange a meeting in person at a mutuallyagreeable time.
Chief Gordon Planes and Councillors T'Sou-ke Nation 2154 Lazzar Rd Sooke, BC V9Z 1G1
Dear Chief Planes and Councillors:
Vancouver Fraser Port Authority 100 The Pointe, 999 Canada Place Vancouver, B.C. Canada V6C 3T4 portvancouver.com
Re: Roberts Bank Terminal 2 Project — Letter of Response
I write in response to your letter of October 10, 2018 to Robin Silvester, who has asked me to respond on his behalf. A response to each of the concerns raised in your letter is provided below. We look forward to next steps, including taking part in a meeting with T'Sou-ke Nation ("T'Sou-ke"), to better understand your concerns and work towards a mutually agreeable consultation approach.
Request for a meeting We acknowledge your request to meet with Robin Silvester. In our most recent letter of February 20, 2018 we responded to your request to meet and proposed a meeting between T'Sou-ke Nation and the Director responsible for the environmental assessment for the Roberts Bank Terminal 2 ("RBT2") Project ("Project"). As I am now the person within the VFPA with overall responsibility for the environmental assessment of the Project, including engagement and consultation, I would like to renew the offer of a meeting.
On March 12, 2018, we further followed up regarding arrangements for a meeting between T'Sou-ke and the Director responsible for the environmental assessment for the Project. In this letter we offered to provide funding to cover T'Sou-ke's costs of meeting in either Vancouver or Victoria. The VFPA did not receive a response from T'Sou-ke to this request and offer. The VFPA remains interested in a meeting with T'Sou-ke, and re-extends the invitation for you to meet with our current Director responsible for the environmental assessment for the Project, myself. As you indicate in your October 10, 2018 letter that you are interested meeting with the VFPA, we will be in touch to establish a time to meet.
VFPA's use of T'Sou-ke's knowledge With respect to the VFPA's use of T'Sou-ke's knowledge in the Marine Shipping Addendum ("MSA"), the VFPA would like to clarify the events with respect to the preparation of the MSA. A summary of those events is as follows:
• On May 25, 2015, the VFPA wrote to T'Sou-ke explaining that the VFPA was considering the effects of marine shipping associated with the Project on the current use of lands and resources for traditional purposes (Current Use) by T'Sou-ke. Pursuant to the Updated Environmental Impact Guidelines, the VFPA was directed by the Canadian Environmental Assessment Agency to conduct an assessment of marine shipping associated with the Project by maximizing the use of existing relevant material, including, specifically, past or ongoing environmental assessments and Aboriginal
Cana&
('ÐPORT ofvancouver
Vancouver Fraser Port Authority100 The Pointe, 999 Canada PlaceVancouver, B.C. Canada V6C 3T4portvancouver.com
Via Canada Post and email
January 74, 2019
Chief Gordon Planes and CouncillorsT'Sou-ke Nation2154 Lazzar RdSooke, BC VgZ 1G1
Dear Chief Planes and Councillors
Re: Roberts Bank Terminal 2 Project - Letter of Response
I write in response to your letter of October 10, 2018 to Robin Silvester, who has asked meto respond on his behalf. A response to each of the concerns raised in your letter is providedbelow. We look forward to next steps, including taking part in a meeting with T'Sou-ke Nation("T'Sou-ke"), to better understand your concerns and work towards a mutually agreeableconsultation approach.
Request for a meetingWe acknowledge your request to meet with Robin Silvester. In our most recent letter ofFebruary 20, 2OIB we responded to your request to meet and proposed a meeting betweenT'Sou-ke Nation and the Director responsible for the environmental assessment for theRoberts BankTerminal 2 ("RBT2") Project ("Project"). As I am now the person within the VFPAwith overall responsibility for the environmental assessment of the Project, includingengagement and consultation, I would like to renew the offer of a meeting.
On March 12, 2018, we further followed up regarding arrangements for a meeting betweenT'Sou-ke and the Director responsible for the environmental assessment for the Project. Inthis letter we offered to provide funding to cover T'Sou-ke's costs of meeting in eitherVancouver or Victoria. The VFPA did not receive a response from T'Sou-ke to this request andoffer, The VFPA remains interested in a meeting with T'Sou-ke, and re-extends the invitationfor you to meet with our current Director responsible for the environmental assessment forthe Project, myself. As you indicate in your October 10, 2018 letter that you are interestedmeeting with the VFPA, we will be in touch to establish a time to meet.
VFPA's use of T'Sou-ke's knowledgeWith respect to the VFPA's use of T'Sou-ke's knowledge in the Marine Shipping Addendum("MSA"), the VFPA would like to clarify the events with respect to the preparation of the MSA.A summary of those events is as follows:
On May 25,2OL5, the VFPA wrote to T'Sou-ke explaining that the VFPA was consideringthe effects of marine shipping associated with the Project on the current use of landsand resources for traditional purposes (Current Use) by T'Sou-ke. Pursuant to theUpdated Environmental Impact Guidelines, the VFPA was directed by the CanadianEnvironmental Assessment Agency to conduct an assessment of marine shippingassociated with the Project by maximizing the use of existing relevant material,including, specifically, past or ongoing environmental assessments and Aboriginal
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C¿nadä
T'Sou-ke Nation January 14, 2019 Page 2 of 4
traditional knowledge reports. In its May 25 letter, the VFPA requested information from T'Sou-ke regarding Current Use, fisheries, or potential effects from marine shipping, stating the following:
"It is expected that information required for the assessment can be gathered from existing materials, and PMV is currently compiling oral information from the Application to the National Energy Board and the T'Sou-ke First Nation oral hearing transcript for the Trans Mountain Expansion Project. Is there any additional current use and fisheries information that you would like PMV to consider in the assessment?"
• Between May 28 and June 27, the VFPA made multiple attempts to contact T'Sou-ke by phone and e-mail regarding the May 25 letter. While the VFPA was successful in connecting with T'Sou-ke on two occasions, there was no response from T'Sou-ke to VFPA's request to meet.
• On June 27, 2015, T'Sou-ke responded to the VFPA's May 25, 2015 letter. T'Sou-ke outlined its concern with the approach of using written evidence, including the "T'Sou-ke Nation Traditional Marine Resource Knowledge and Use Study Report," with the National Energy Board (NEB) for the Trans Mountain Expansion Project and stated that it had not authorized the VFPA to use it for the environmental assessment of the Project. T'Sou-ke agreed to the VFPA's offer to set up a meeting in order to discuss how the VFPA could assist T'Sou-ke in preparing a Project-specific marine traditional use study (MTUS) and to discuss capacity funding.
• On July 20, 2015, having had no response from T'Sou-ke to several VFPA requests to meet, the VFPA provided T'Sou-ke with a draft section of the MSA entitled "T'Sou-ke Nation Current Use of Lands and Resources for Traditional Purposes." The VFPA requested that T'Sou-ke confirm the accuracy of the information presented in the summary of traditional use and identify any sensitive information that should be removed from the final MSA. The VFPA continued to call and e-mail T'Sou-ke to establish a time to meet and to request T'Sou-ke's comments on the draft traditional use summary, but VFPA did not receive any comments on the traditional use summary from T'Sou-ke by the requested deadline.
• On August 18, 2015, the VFPA and T'Sou-ke had a meeting to discuss the marine shipping associated with RBT2 and the scope of work for the assessment. At that meeting the VFPA asked T'Sou-ke for details with respect to the type of study, timelines and price associated with an RBT2-specific MTUS. The parties discussed these issues. The VFPA also indicated at this time that the MSA would be finalized in the near future, and that the timeline for the inclusion of new information in this report would be a challenge. The parties discussed options for addressing this timing challenge, and T'Sou-ke indicated that they might consider providing comments on the draft summary of traditional use sent on July 20, 2015.
T'Sou-ke NationJanuary 14,20t9Page 2 of 4
a
traditional knowledge reports. In its May 25 letter, the VFPA requested informationfrom T'Sou-ke regarding Current Use, fisheries, or potential effects from marineshipping, stating the following:
"It is expected that information required for the assessment canbe gathered from existing materials, and PMV is currentlycompiling oral information from the Application to the NationalEnergy Board and the T'Sou-ke First Nation oral hearingtranscript for the Trans Mountain Expansion Project. Is there anyadditional current use and fisheries information that you wouldlike PMV to consider in the assessment?"
Between May 28 and June 27,the VFPA made multiple attempts to contactT'Sou-keby phone and e-mail regarding the May 25 letter. While the VFPA was successful inconnecting with T'Sou-ke on two occasions, there was no response from T'Sou-ke toVFPA's request to meet.
On June 27,2OL5, T'Sou-ke responded to the VFPA's May 25,2015 letter, T'Sou-keoutlined its concern with the approach of using written evidence, including the"T'Sou-ke Nation Traditional Marine Resource Knowledge and Use Study Report," withthe National Energy Board (NEB) for the Trans Mountain Expansion Project and statedthat it had not authorized the VFPA to use it for the environmental assessment of theProject, T'Sou-ke agreed to the VFPA's offer to set up a meeting in order to discusshow the VFPA could assist T'Sou-ke in preparing a Project-specific marine traditionaluse study (MTUS) and to discuss capacity funding.
On July 20, 2015, having had no response from T'Sou-ke to several VFPA requests tomeet, the VFPA provided T'Sou-ke with a draft section of the MSA entitled "T'Sou-keNation Current Use of Lands and Resources for Traditional Purposes." The VFPArequested that T'Sou-ke confirm the accuracy of the information presented in thesummary of traditional use and identify any sensitive information that should beremoved from the final MSA, The VFPA continued to call and e-mail T'Sou-ke toestablish a time to meet and to request T'Sou-ke's comments on the draft traditionaluse summary, but VFPA did not receive any comments on the traditional use summaryfrom T'Sou-ke by the requested deadline.
On August 18, 2015, the VFPA and T'Sou-ke had a meeting to discuss the marineshipping associated with RBT2 and the scope of work for the assessment. At thatmeeting the VFPA asked T'Sou-ke for details with respect to the type of study,timelines and price associated with an RBT2-specific MTUS. The parties discussedthese issues. The VFPA also indicated at this time that the MSA would be finalized inthe near future, and that the timeline for the inclusion of new information in this reportwould be a challenge. The parties discussed options for addressing this timingchallenge, and T'Sou-ke indicated that they might consider providing comments onthe draft summary of traditional use sent on July 20, 2015.
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T'Sou-ke Nation January 14, 2019 Page 3 of 4
• After the meeting on August 18, the VFPA followed up with T'Sou-ke regarding T'Sou-ke's MTUS proposal for an MTUS specific to RBT2-associated marine shipping. On September 14, 2015, T'Sou-ke wrote the VFPA with a proposal and budget for the work (the "MTUS Proposal"). In the September 14 letter, T'Sou-ke also requested capacity funding for future engagement with the VFPA.
■ On September 25, 2015, the VFPA responded to the MTUS Proposal and T'Sou-ke's request for capacity funding. The letter indicated that after careful review of the MTUS Proposal, the VFPA had formed the opinion that the scope of work indicated in that study was more extensive than required given the nature of the information requested. The VFPA offered the T'Sou-ke funding for an MTUS and capacity funding, recognizing that these amounts were less than those requested by T'Sou-ke. In this letter, the VFPA further noted that it would be finalizing the Marine Shipping Addendum in the near future and would require the final MTUS report by October 9, 2015. The VFPA also stated the following:
"You have expressed concern about the use of the TMUS submitted to the NEB for the Trans Mountain Expansion project as a source of information in the T'Sou-ke Nation's current use in the marine shipping area. At your request we will remove any reference to that report. Ms. Sinead Deery will be following up with you to determine whether any changes are requested." [Emphasis added]
• Ms. Deery called T'Sou-ke on September 29, September 30 (twice), October 1, October 5, and October 6, 2015, but received no response. In addition, she wrote a follow up email on October 5, 2015 with respect to whether T'Sou-ke would want any changes to the T'Sou-ke's traditional use summary contained in the Project Marine Shipping Addendum, as provided to T'Sou-ke in July 2015, but did not receive a response to those phone calls or that email.
The VFPA disagrees with the manner in which T'Sou-ke has characterized these events in your October 10, 2018 letter. As the foregoing summary indicates, the VFPA provided T'Sou-ke with several opportunities to confirm that T'Sou-ke's traditional use information contained in the MSA was accurate and whether it should be changed or removed, and that T'Sou-ke did not provide that confirmation. The VFPA wishes to note that the VFPA removed information from the MSA at the request of Indigenous groups where those requests had been confirmed by the time of filing of the MSA. The VFPA made sincere efforts to provide T'Sou-ke with the same opportunity. In light of the events outlined above, it is the VFPA's position that it has conducted itself in a fair and reasonable manner.
Request for capacity funding and Marine Traditional Use Study funding With respect to T'Sou-ke's request for funding for an MTUS and capacity funding in relation to marine shipping associated with the Project, the VFPA continues to be prepared to provide such funding to support T'Sou-ke's participation in the RBT2 Project and completion of a MTUS. We will follow up regarding T'Sou-ke's request for funding by way of a separate letter.
T'Sou-ke NationJanuary 14, 2OI9Page 3 of 4
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After the meeting on August 18, the VFPA followed up with T'Sou-ke regardingT'Sou-ke's MTUS proposal for an MTUS specific to RBT2-associated marine shipping.On September L4, 2OI5, T'Sou-ke wrote the VFPA with a proposal and budget for thework (the "MTUS Proposal"). In the September 14 letter, T'Sou-ke also requestedcapacity funding for future engagement with the VFPA.
On September 25, 2015, the VFPA responded to the MTUS Proposal and T'Sou-ke'srequest for capacity funding. The letter indicated that after careful review of the MTUSProposal, the VFPA had formed the opinion that the scope of work indicated in thatstudy was more extensive than required given the nature of the information requested.The VFPA offered the T'Sou-ke funding for an MTUS and capacity funding, recognizingthat these amounts were less than those requested by T'Sou-ke. In this letter, theVFPA further noted that it would be finalizing the Marine Shipping Addendum in thenear future and would require the final MTUS report by October 9,2015. The VFPAalso stated the following:
"You have expressed concern about the use of the TMUSsubmitted to the NEB for the Trans Mountain Expansion projectas a source of information in the T'Sou-ke Nation's current usein the marine shipping area. At your request we will remove anyreference to that report. Ms. Sinead Deerv will be following upwith you to determine whether anv changes are reouested."IEmphasis added]
Ms. Deery called T'Sou-ke on September 29, September 30 (twice), October 1, October5, and October 6, 2075, but received no response, In addition, she wrote a follow upemail on October 5, 2015 with respect to whether T'Sou-ke would want any changesto the T'Sou-ke's traditional use summary contained in the Project Marine ShippingAddendum, as provided to T'Sou-ke in July 2OL5, but did not receive a response tothose phone calls or that email,
The VFPA disagrees with the manner in which T'Sou-ke has characterized these events in yourOctober 10, 2018 letter. As the foregoing summary indicates, the VFPA provided T'Sou-kewith several opportunities to confirm that T'Sou-ke's traditional use information contained inthe MSA was accurate and whether it should be changed or removed, and that T'Sou-ke didnot provide that confirmation. The VFPA wishes to note that the VFPA removed informationfrom the MSA at the request of Indigenous groups where those requests had been confirmedby the time of filing of the MSA. The VFPA made sincere efforts to provide T'Sou-ke with thesame opportunity. In light of the events outlined above, it is the VFPA's position that it hasconducted itself in a fair and reasonable manner.
Request for capacity funding and Marine Traditional Use Study fundingWith respect to T'Sou-ke's request for funding for an MTUS and capacity funding in relationto marine shipping associated with the Project, the VFPA continues to be prepared to providesuch funding to support T'Sou-ke's participation in the RBT2 Project and completion of aMTUS. We will follow up regarding T'Sou-ke's request for funding by way of a separate letter.
T'Sou-ke Nation January 14, 2019 Page 4 of 4
We look forward to the opportunity to meet with you in person in the near future. As indicated in your letter, we will be in touch with Ms. Thut to arrange a meeting in person at a mutually agreeable time.
Yours truly, VAN7 R FRASER PORT T AUTHORITY
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Bryan Nelson Director, Infrastructure Sustainability
cc: Michelle Thut, Administrator, T'Sou-ke Nation (via email) Cindy Parker, Panel Manager, Roberts Bank Terminal 2 Project, CEAA (via email)
T'Sou-ke NationJanuary 14,2079Page 4 of 4
We look forward to the opportunity to meet with you in person in the near future. As indicatedin your letter, we will be in touch with Ms. Thut to arrange a meeting in person at a mutuallyagreeable time.
