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5ufte3dQ— 1t22Mainind Street¼ncoiiver, BC VS 5C.JPbone:. 604.68713549 Fa,r 604.657.2696wnjtNaw.ca

ltaaune M. KyleDift Line: 604.687,0549, ext. 107B-mall: rk34e(Ccl6w.a

Delivered by Fat

National Energy Board444 Seventh Ave. SWCalgary, AR T2P 03CR

Attention: Anne-Made EriclcsonActing Secretary of the Board

Dear Sirs/Mesdames:

Delivered by E-mail (mariefrance.therrien®ceaa.acee.ge.ca)

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Canadian Environmental Assessment AgencyPlace Bell Canada 160 Elgin Street, 22nd FloorOttawa, Ontario KIA 0113

Attention: Marie-Prance Therrien, PanelManager

Re: Northern Gtteway Pipeline Project (the “Project”)File No. 158084-281

We are writing further to our letter of June 18, 2010 and our e-mail of June 8, 2010 in relation to theabove-noted proposed Project. To date, we have had no response to the issues and questions raised inthat correspondence.

In the meantime, we have completed an initial, partial review of the draft Application submitted byNorthern Gateway Pipelines Limited Partnership (“NGPLP’). Although our review is on-going and wewill have more comprehensive comments to make on the draft Application once that review iscompleted, we have noticed some glaring deficiencies that are important to bring to the JRP’s attentionin2mediately. We note the following:

Complete spill contingency and response plans ire required.

The CEAA “Scope of the Factors” states “The proponent shall also present a preliminaryemergency measures plan and environmental protection plan making it possible to reactadequately in the event of an accident” However, the Application only provides tables ofcontents and example procedures for these plans. The details of these plans are required tosupport any assessment of the residual effects of an oil spilt accident.

JANES FREEDMAN KYLE,Th 1) 0 1) A ‘ I ‘Th.i.i.. I i .v. .zm. I

July 2, 2010

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Gitxaata is one of the parties that will be most adversely impacted from accidents ormalfunctions in coastal areas, given that it is a coastal First Nation community that relies heavilyon coastal resources and whose culture is centered completely around coastal areas andresources, Gitaala is extremely concerned about the potential for oil spills and catastrophicconsequences. The importance of this potential risk was highlighted in the report of CEAA’sAboriginal Funding Review Committee (“FRC”) when it stated that “the marine terminal andshipping components posed a greater risk to the environment than the pipeline component .. .thePRC took the view that potential adverse environmental effects associated with these projectcomponents (e.g. linked to accidents and malfunctions) could be experienced by sensitive marineecosystems over much larger areas, and could be more significant.”

As a result, it is particularly disconcerting to Gibcaala that NGPLP does not include a project-specific emergency response plan in the Application and has not included any infbrmation fromGitxaala in this section of the Application. NGPLP states that: “Prior to operation of the KitimatTerminal, Northern Gateway will complete project-specific emergency response plans for reviewby the NED and Transport Canada.’ [Volume 7C, Section 5, 5.21

This is a completely unacceptable approath. Given what we are witnessing in the Gulf ofMexico, it is highly troubling that NGPLP has not yet prepared a project-specific emergencyresponse plan, and appears to be suggesting that it will not be preparing one for review in theflU’ process. How NGPLP proposes to deal with emergency situations is critically important toGitxaala given what Gilxaala stands to lose if a spill occurs. The following complete plans arerequired as part of the Application: Oil Spill Response Plan and Marine and Terminal Oil SpillContingency or Response Plans Ship-Oriented Contingency Plan.

hi light of this significant gap in the Application, it is difficult for us to understand howNGPLP’s legal counsel can state that “it is patently clear that the Application contains sufficientdetail to initiate the review”, as he did in his June 17, 2010 letter to the NED. A detailed project-specific emergency response plan needs to be incorporated into the Application before it isaccepted as a completed Application and before the IRP issues a Hearing Order.

• An assessment of significance of impact from potential oil and condensate spills consideringh&th likelihood and consequence of a spill is required.

The CEAA “Scope of the Factors” and NEB Filing Manual require an assessment of theenvironmental effects of malfunctions or accidents. However, this assasment is not complete inthe Application.

The Application evaluates the likelihood of a spill and examines the potential ecological effectsof’ oil and condensate in the marine environment seDarately. but does not consolidate thelikelihood and consequence variables in a stnictured method that is typical of established riskassessment methods. Without this assessment, there is no conclusion on the overall risk posedby the marine transportation activities on the surrounding marine and human environment.

• Complete baseline information is required for the Coastal Sensitivity and Key SensitivityMapping.

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The CEAA “Scope of the Factors” provides that: ‘With respect tç all components of the Project,the Proponent will provide the baseline infonnation for .Jdentification, description and mappingof marine habitats, including habitat type, location and range, habitat stability, diversity,abundance and sensitive aquatic habitat”

The Application contains incomplete Coastal Sensitivity Mapping and Key Sensitivity Mapping.This mapping is necessary for the description of baseline information as well as accident andmalfunction response, including components necessary for the Emergency Response Plan. Withrespect to the Coastal Sensitivity Mapping, NGPLP states in the Application that the:

.thappiiig identifies coastal sensitivities and types of shoreline, based mainly oninformation publicly available from the British Columbia government’s Integrated LandManagement Bureau.. . .The mapping subject to field verification and refinement withinput from local communities. Wolume 8C, SectionS, 5.6.1]

In relation to the Key Sensitivity Mapping, NGPLP states in the Application that the preliminarypriority protection sites are subject to field verification and consultation with local residents andagencies. [Volume SC, Section 5, 5.6.2]

Complete verification of locations and levels of sensitivities is essential to appropriately identi&the risk (consequence) of a spill. This is needed to assess the sigiiificance of an accident. It iscritical that field verification and input &om local communities be obtained and incorporated intothe Application before the Application is complete and before the JEP issues a Hearing Order.

• The assessment of effects of oil in the marine environment must consider secondary social,economic and cultural effects.

The CEAA “Scope of the Factors” states that “The proponent will describe and evaluate thepotential effects of project-related accidents and malfunctions on the environment, includingimpacts on social, economic or cultural elements of the environment and human health to peoplein close proximity of spilled contaminants., the proponent shall also provide an analysis of thepotential environmental effects of such releases on the marine and terrestrial environment and onhuman health”.

The assessment of effects of oil in the marine environment in the Application examinesecological and human health effects but does not relate these effects to secondary social,economic and cultural effects. This is necessary for a fill understanding of the potential effect(consequence) of a spill.

• Information ott Traditional Marine and Land Use Is rqulred.

The CEAA “Scope of the Factors” states that “The Proponent must identify traditional activities,including activities for food collection, social and ceremonial and other cultural purposes, inrelation to such lands, waters and resources. The focus of this discussion shall be on the currentuse of lands, waters and resources for traditional purposes, and the sites and features of thelandscape associated with them. The proponent shall provide infoimation that would include adescription of dependence on country foods and harvesting for other purposes, includingharvesting of plants for medicinal purposes. The Proponent will identifg any effects on

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Aboriginal rights and interests, including treaty tights and current land uses for traditionalpurposes, and outline the proposed methods to manage and mitigate any such effects to anacceptable level.” The “Scope of the Factors” also state: “Potential effects on harvesting ofmarine species as well as shellfish, including a consideration of changes in harvester travelpatters resulting from increased vessel traffic; disturbance of harvest patterns and harvest level,or loss or alteration of high-value harvest areas; changes to harvester effort as perceived byharvester; changes in the quality of harvested species including contaminatIon that wouldadversely affect their consumption or sale” and ‘With respect to all components of the Project,the Proponent will provide the baseline information for ... [a] description of fishing activities,including Aboriginal and non-Aboriginal activities, as well as seasonality of these activities.”

The Application is deficient in relation to information on Traditional Marine Use and TraditionalLand Use and effects on Aboriginal rights and interests.

In its Application, NGT’LP states:

There is currently very limited infomiation on Aboriginal use of fish, wildlife andvegetation resources for communities in region.., .there is clear evidence that Aboriginalpeople in the area harvest fish, wildlife and plants for food as well as social andceremonial use, although exact nature of this use and key harvesting locations is as yetunknown.’ [Volume 7C SectionS, 8.3.1]

Because detailed information regarding traditional use in the areas has not yet beenprovided, conclusions regarding effects on harvesting and cultural resources have notbeen reachett” fVolume RD Section 9, 9.5.3.2]

Little information is available on the exact locations of fishing sites and timing ofuse formarine fisheries within and adjacent to anchorage sites and therefore whether a fishingsite would be affected.” [Volume SB, Section 3, 3A4.2]

The importance of FSC fishing was impressed upon Northern Gateway during interviewswith Aboriginal residents in communities such as K.itsmaat Village, Hartley Bay,Kitkatla, Prince Rupert and Lax Kw’alaanis. Although some members of the Aboriginalcommunity are more active in the fishery than others, all of the Abériginal coastalcommunities traditionally harvest fish and shellfish in the area. Northern Gateway iscurrently conducting focused engagement with coastal and interior Aboriginalcommunities; this engagement includes assessing their interest in participating inAboriginal traditional knowledge (ATK) studies. Additional FSC information maybecome available as a result of these studies, such as information on fisheries and marineresources use and specific information on species, gathering and harvesting methods,seasons of use, sites of significance and travel routes.” [Volume SB, Section 12, 12.1]

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cc: Qittaala Nation, Au: Chief Elmer Moody and Clarence InnisGiocaala Nation, Mt Mark IgnasGitiatla Nation. Aft: Kyle BafesogFraser Mimer Cssain TIP, At: Richard Neufeld, Q.C. (via e-mai(: Richax&neiseldgghc-law.com)Donovan & Co., An: Jennifer GrifBth (via emai1: JenniferiflIth©aborigina1-Iaw-com)Brett Maracte, CFiAAMinister of Fisheries and Oceans, Au: The Honourable Gail Shea (via email min(aldfo-mpo.Rc.caMinister of Transport Canada, Att The Honaurable John Baird (via email fohn,bairdfa2tc.go.ca)Minister of Indian and Northern Afihirs Canada, Au: The Honourable Chuck Strahi (via fax 1.81 9953.4941)MiniMa of Environment Canada, Au: The flonoi’rable Jim Prentice (via email Ministatec.Ec,ca)Canadian Transport Agency, Au: Geoffrey C. Hare, Chainnsn and ChiefExetutive Offite (via emailGeothtv haracotc-ca.c.c&hMinister ofNatural Resources Canada, Au: The Honourabic Christian ParadisMinister ofHeath Canada, Au: The Honourable Leona AglukkaqJanes Freedman Kyle Law Corporation, Mt Robert Freedman

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To: Anne-Marie EricksonNational Energy Board1-800-899-1265

From: Rosanne M. KylerkyleWjtklaw.ca

Date: JuIy2, 2010

Fax: 1-877-288-8803

File: 1023-005

Pages (including this cover):

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Please see attached.

MESSAGE

JANES FREEDMAN KYLEC •:_. C Ei- 71 0 iT

Suitc3dO- 1l22Mn1gndSttVanrivu, BC V6B 5L1Phcsic 604.627.0549 Fa 604.687.2696wwwJ&1iw.c

FAX TRANSMISSION COVER

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