By email: [email protected] June 9, 2014 BC Environmental Assessment Office (BCEAO) 836 Yates Street Victoria, BC V8W 1L8 Attention:

Lisa Payne Project Assessment Officer, BCEAO

RE: Supplement to April 22 Submission, Coastal GasLink Application for Environmental Assessment Certificate Below is a supplemental response into the Working Group review of the proposed Coastal GasLink pipeline (“the Project”). This response is provided on behalf of Doig River First Nation (DRFN), McLeod Lake Indian Band (MLIB), Saulteau First Nations (SFN) and West Moberly First Nations (WMFN). It is a supplement to our April 22, 2014 submission, based on the subsequent Working Group (WG) meetings and related discussions through May, 2014, and on direct discussions with CGL held on June 4, 2014. We have not undertaken a point by point response to the Issue Resolution (IR) tracking table, though this letter does make reference to the table. IR numbers refer to the issue tracking numbers in the document circulated by EAO via email on May 15, 2014. In general we stand by the comments made. Aside from a few exceptions, the level of detail in the responses (IR tracking table and through the WG meetings) need a further push from your office to find resolution. This is particularly the case since CGL has clarified their position to us that WG concerns will generally hold merit only if explicitly supported by EAO or regulatory agencies. A common theme in our April 22 submission and many other members of the WG is the lack of detailed mitigation on important issues. The Application is very presumptuous that eventual solutions at a future date are a foregone conclusion. The level of detail submitted in the Applications is not sufficient to support that position. For instance: •

No evidence to date that running a pipeline across the Sukunka River and through 10km of largely pristine habitat of the Sukunka watershed can be done in a way that avoids adverse effects. Either the pipeline is in caribou habitat and through a raised valley of considerable traditional use (current route), or it runs through a pristine valley where traditional use and cultural value are also extremely high (previous route under consideration). Either way it would open up this watershed to additional poaching and resource extraction pressure. These issues highlight the critical importance of having a comprehensive Access Management Plan developed for the project. The absence of an Access Management Plan that demonstrates how shortcomings in approaches used by existing pipelines will be avoided is highly relevant. These concerns were discussed with CGL during early consultation with our communities and has been raised repeatedly thereafter. This issue needs to be explored in greater detail before conclusions can be drawn regarding adverse effects on a variety of VCs.

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It is presented as a foregone conclusion that impacts to old growth forests and to caribou habitat, and the permanent impacts to whitebark pine, can be avoided or effectively compensated. We find the support for this position to be lacking and feel the discussion in the WG meetings reinforced this opinion.

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Industry best practices / standard BMPs are leaned upon heavily throughout the Application as a basis for no adverse effects, with high confidence. The proponent has not included any description of how these best practices differ from those in place for existing pipelines, which do not meet the picture painted by CGL for this proposed project. In September 2013, SFN provided the proponent with an account of how existing pipelines have led to extensive back country access, and habitat degradation and poaching1. In October 2013, West Moberly FN provided CGL with an account2 of pipeline exposure and remedial works (with consequent unplanned impacts) in Angusmac Creek, with an added reference to the previous devastation on Pine River. o

Further to this concern over water stewardship, we have repeatedly asked for trenchless crossing methods to be used wherever possible. Examples are illustrated in IR#545 and #546 – and in the scores of other culturally sensitive locations identified for CGL in other correspondence – but the proponent response to these IR comments indicates a dismissive attitude to these issues.

Given these demonstrated impacts and the increased pressure for future development within our territory we argue that industry best practices and standard BMPs have failed and will continue to fail to mitigate meaningful impacts to land and water, and our members’ Treaty and Aboriginal Rights. In general, the simple virtue of being a very large spatial project does not convey justification to defer details that would otherwise be necessary at the EA stage for spatially smaller projects. There is a sense given that asking for site specific mitigation at this stage is an unfair burden on the proponent because of the scope of the work. To be clear, there is always a balance to be struck between what is presented at this stage versus what can be deferred to permitting or preconstruction discussions. We feel the expectation for greater detail prior to an EA Certificate is reasonable in this circumstance given the uncertainty on potential effects and ability to mitigate/compensate. That this may be a large burden of work is a necessary consequence from the proponent’s desire to take on a project of this size. Faced with these concerns, it is not unreasonable to expect some higher level of detail. To defer complete resolution of these issues, and to conclude that the project will have no adverse effects without such resolution, is contrary to the spirit and the letter of the BC Environmental Assessment Act, and unacceptable to our communities. Examples of unsupported conclusions on residual effects are not limited to cases where details on mitigation are deferred. There are other examples where details simply do not support the conclusions drawn. For example, IR# 588 noted that the mountain goat effects assessment was based on an assumption that mountain goats habitat is represented strictly by legally designated or proposed ungulate winter ranges (UWRs). This will underestimate impacts on mountain goats, as UWR capture only certain features of mountain goat habitat use. The proponent response does acknowledges that goat habitat exists outside of UWR, but did not provide us with further explanation regarding how this influences the conclusions drawn in the Application. This is important because the mitigation offered in the EMP (Section 7.1.3) specifies all mountain goat mitigation in specific reference to UWR. During a meeting with CGL on June 4, 2014, we provided 1 2

Letter from J. Matheson, TetraTech on behalf of Saulteau First Nations, to TransCanada, dated September 20, 2013. Letter from L. McArthur, West Moberly First Nations, to K. Zilm, TransCanada Pipelines Ltd., dated October 8 2013.

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specific shortcomings with this approach and why it may overlook key mountain goat habitat, rendering the conclusions in the Application unsupported. We offered a specific process to enhance (not redo or duplicate) the existing assessment to provide more meaningful protection of the environment, and by extension protection of our members’ Treaty and Aboriginal Rights. Pending the outcome of such necessary further work, the present mitigation in the Application cannot be accepted for an EA Certificate. Details are also lacking on the impacts of the many ancillary components of the project. Roads and camps in particular are not suitably defined nor assessed. The scale for each of these in a project of this magnitude requires better planning and thoughtful mitigation approaches. There seems to be an underlying sense that these are easily managed project components, with well understood and readily mitigated impacts. It is our opinion that these temporary components of the project carry legitimate risk of lasting harm via consumption, disturbance, and destruction of natural resources and cultural well-being. In reviewing the submissions by other WG members, it would appear this is a feeling held by other parties as well. A number of our comments in April were related to dubious feasibility of the proposed mitigation. Since the conclusions of the effects assessment are based upon the perfect implementation of this mitigation, we feel this is it highly relevant that mitigation be specific, and be realistic in implementation and in effectiveness. After reviewing the proponent responses and the WG meeting discussions, we are unmoved from this position. For example: •

IR #539 noted that the proposed mitigation would not be effective in its objective (ensuring land users would be aware of disruptions), and offered a specific countermeasure. The proponent response deflected this comment without addressing the substance of the issue. Reference was made to Section 5.3 of the EMP for how our comment was addressed. Our comment was made specifically on why Section 5.3 does not address our concerns. We would like our request in IR #539 captured in any proposed Table of Commitments.

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The proponent response to the TSS/turbidity comment (IR #536) actually doesn’t address the issue at all, and we remain unsure of how a monitoring threshold of 10mg/L Total Suspended Solids can be implemented during active field work. This IR is readily resolved: for instance, pre-project development of an NTU-vs-TSS calibration at each watercourse crossing. But the inclusion of the measure as-is and the response that was provided are not practically implementable. Examples like this generate concern over general vigilance for water quality during construction.

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IR#610 questioned the practicality of an 80km speed limit on winter roads for avoiding wildlife collisions, and proposed an alternate barrier height for ungulates as supported by published literature. The proponent’s response relied upon regulatory guidance. We believe firmly that regulatory standards are a bare minimum and that project-specific mitigation should consider the issues at hand for the local setting, including biophysical and cultural values. We call upon either regulators or the proponent to demonstrate due diligence in this regard.

In many cases the proponent has responded to concerns raised by our communities or by others without actually addressing the content of the concern, but instead giving a statement that CGL will follow the direction of regulatory agencies / EAO. If that must be the case then we direct those comments to EAO, to consult with regulatory agencies, and seek a meaningful response, and inclusion of a resolution through the Table of Commitments or request for supplemental information.

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The proponent frequently provided response to our concerns that did not address the content, but rather fell back on a generic response that the EA was undertaken in accordance with the approved AIR. •

In numerous cases (e.g. IR#570, #584), the comment in the first place was meant to point out that the conditions of the AIR had not, in fact, been met. The 30 day screening review is not comprehensive enough to determine if every single aspect of the AIR has indeed been met, and so the response that “the EA was accepted for review, therefore it is inconceivable that we missed a commitment in the AIR” is not acceptable. A response should address the comment on its own merits. These need not be onerous responses, though some may require some reference to supporting opinions. For example, there are concerns related to timing of some of the fish presence/absence work and how that is incompatible with the expectations of the relevant guidelines. The simple fix in this case is to apply a precautionary principle. This sort of comment is not an attempt to officiously tie up the project, it is just an attempt to ensure accountability and transparency, and due diligence.

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In other cases (e.g. IR#562, #563, #659), it is true that the comments were directed at the scoping level decisions in the Application. We accept that the VC and AIR documents were approved by EAO in 2013. We have also pointed out that none of our four communities were able to submit meaningful comments on those documents. In some cases this was due to workload burdens, and the absence of capacity funding at that time. In the case of DRFN, our community was not even invited to comment as we were not then recognized as a Schedule C First Nation3. We are willing to entertain rationale that the content that is included in the Application can address these issues through reinterpretation, but we are not satisfied to have technical consultation curtailed on the basis that the AIR was approved without input from our communities. We also note that it appears there are numerous provisions in the BC Environmental Assessment Act, 2002 that would enable the Executive Director to require supplemental or retro-fitted assessment on a discretionary basis, which calls into question how strict the timelines and AIR may in fact be.

A challenge of a very large spatial project on very aggressive application timelines is the sheer volume of information involved. It is a challenge for everyone, including the proponent. So when we see things like surveys being shoe-horned into marginally relevant times or methods, or boilerplate mitigation suggested that ignores specific concerns about key VCs, or deference of the most contentious issues (caribou habitat offsetting, OGMA compensation, access management restrictions that will be effective and realistic, etc.) – these are reminders of the importance to address those issues before the project gains further momentum. We request EAO and the technical experts from regulatory agencies consider these issues at this time. The themes and examples presented here are illustrative, not exhaustive of our concerns and expectations for the remainder of this assessment process. We question the credibility of the assessment and the conclusions drawn in numerous areas, and in many cases this could be addressed simply through greater detail and transparency. We have provided some specific requests for commitments that would be included in the draft assessment report, but above all else, we would like to see the many gaps addressed through supplemental information submissions by the proponent, prior to concluding with a final Table of Commitments. In reviewing the overall IR table, we note that many others within the WG provided similar sentiments. It is not our objective as members of the WG to impede due process, but rather to foster it. It is simply our feeling that

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The EAO has placed particular limitations on DRFN’s ability to meaningfully participate in much of the proceedings and processes of this assessment. Adding DRFN to Schedule C so late in the process does not rectify this problem.

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additional time is needed in this process, and that there are in fact numerous mechanisms available to EAO or to the proponent to facilitate that additional time. Please contact the undersigned should you wish to discuss further. Mussi and Wuujo asanalaa,

Lisa MacArthur Lands Department West Moberly First Nations

Naomi Owens Lands Department Saulteau First Nations

Deborah Prince Lands Referral Office McLeod Lake Indian Band

Jane Calvert Lands and Resources Doig River First Nation

c. Pottinger Gaherty Environmental Consultants Ltd

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