A commentary by the chief of Esquimalt Nation.
Rising from the seafloor to within 15 metres of the surface, Constance Bank has provided the Lekwungen People with marine foods that have sustained them for thousands of years.
In the heart of Juan de Fuca Strait, this three-kilometre long, one-and-a-half kilometre wide undersea island lies about three nautical miles south of Clover Point and is easily accessed from Victoria and Esquimalt harbours.
The bank forces deep, nutrient rich waters upward, which creates valuable fishing habitat for halibut, salmon, and other species of groundfish.
The Lekwungen People understood that fishing in this area could be treacherous due to intense winds, large tidal movements, and waves often accompanied by swells coming off the Pacific Ocean.
Canadian Hydrographic Service Sailing directions note that vessels should not anchor on the Bank as its bottom is rock where heavy rip tides sometimes occur.
In 2016, despite acknowledging that Constance Bank is exposed to “wind, waves and swell,” the Pacific Pilotage Authority issued a “Notice to Industry” adding five anchorages at the Bank for year-round, short-term use up to 48 hours. These anchorages were added in response to the significant growth in large vessels headed to Vancouver Fraser Port Authority, which has doubled in the past two decades.
In April 2023, Transport ÎÚÑ»´«Ã½ told the Esquimalt Nation that they were considering the transfer of jurisdictional authority over the anchorages at Constance Bank to Vancouver Fraser Port Authority (VFPA).
The Nation was invited to participate in a one-hour nation-to-nation bilateral meeting in order that Transport ÎÚÑ»´«Ã½ could provide background with regards to anchor management in the Salish Sea and to solicit the Nation’s views on the proposed change in authority.
We were advised that the objective of the proposed jurisdictional change was to provide the VFPA with the jurisdictional authority to enable mandatory and enforceable anchorage management at Constance Bank.
In response, our Nation told Transport ÎÚÑ»´«Ã½ that Constance Bank is within the core area of the traditional territory of the Esquimalt Nation. We told them that the area is rich in seafood and is a key component of the Salish Sea marine ecosystem.
We reminded Transport ÎÚÑ»´«Ã½ that the bank is within the designated critical habitat for the endangered southern resident killer whales. We have depended upon Constance Bank since time immemorial as it is a readily accessible source of food for our community.
We have strong environmental, cultural, economic, and governance interests in Constance Bank, flowing from our constitutionally protected aboriginal rights and title and our Douglas Treaty rights.
The significant increase in commercial marine vessels, especially large container ships, has already greatly diminished our ability to exercise those rights. We told Transport ÎÚÑ»´«Ã½ that our Douglas Treaty rights, established in 1850, provided that the Lekwungen People would have the right to “fish as formerly.”
However, these rights have been greatly diminished, as we can no longer obtain seafood from most of our traditional territory due to urban encroachment, vessel traffic, overfishing, industrialization, and pollution.
We told Transport ÎÚÑ»´«Ã½ that before proceeding with any change in the management of anchoring at Constance Bank, a site-specific environmental and socio-political impact assessment is required.
The environmental impacts of anchoring at Constance Bank have not been determined. The implications of these anchorages on aboriginal and Douglas Treaty rights have not been acknowledged and addressed.
Additionally, the transfer of jurisdiction would bring the area around Constance Bank under Port Authorities Operations Regulations, which prohibit all fishing.
Anchorage sites experience acute and persistent impacts that can harm the marine ecosystem. We are especially concerned with the impacts of anchor damage to the sea floor and the discharge of scrubber wash water on marine life.
Scrubber wash water is just one of the vessel discharges that can harm the health of the marine ecosystem, but it is particularly insidious as it comes from “cleaning” a ships’ fuel exhaust and contains pollutants such as metals, hydrocarbons, and sulphurous and nitrous acids.
Many of these pollutants accumulate in the food web and are present in the seafoods we eat. Increased risk of collisions, emergencies, and risks of oil spills are also significant concerns with the large projected increase in vessel traffic.
Our concern became real when the container ship Zim Kingston burned at the Constance Bank anchorage for five days in October 2021. The container ship held at least two chemicals of concern and was held at the bank, a critical fisheries ecosystem, until December 2021. We understand that no environmental assessment has been done and that the decision to anchor vessels at Constance Bank was done without consideration of the environmental or social impacts.
It may be, that after an impact assessment, that anchoring should not continue at this site, or should only continue after strict and enforceable mitigation measures are developed that address both current and future uses and risks.
We told Transport ÎÚÑ»´«Ã½ that the Constance Bank anchorage management authority should continue to reside with them, in consultation and cooperation with the Esquimalt Nation.
No change in the management of the anchorage is necessary to develop regulations and enforcement measures; the current legislative framework is sufficient to articulate those roles and responsibilities.
Proceeding with a renewed anchorage management regime, in the absence of a comprehensive impacts assessment, will increase the risk of irreparable damage.
Other federal agencies that have environmental and resource jurisdiction need to be included in resolving this significant resource issue, especially Fisheries and Oceans ÎÚÑ»´«Ã½ and Environment and Climate Change ÎÚÑ»´«Ã½.
We recognize that there is a need to address some issues now. The Nation clearly understands the vital role that the Port of Vancouver plays in the Canadian economy.
At our meetings with Transport ÎÚÑ»´«Ã½ officials, we proposed a two-step process to address the matters arising from anchoring marine vessels at Constance Bank. We offered to engage with Transport ÎÚÑ»´«Ã½ and other affected federal agencies to develop an interim two-year anchoring protocol that Transport ÎÚÑ»´«Ã½ would operationalize and enforce on a non-voluntary basis.
This interim protocol is intended to provide time to conduct a longer-term bilateral review to gain a better understanding of the impacts of anchoring at Constance Bank.
We remain prepared to engage on both interim and long-term solutions for vital public safety services including, but not limited to, grain inspection, immigration/border services, RCMP, and Department of National Defence.
During this initial one- to two-year interim period the parties would conduct an environmental assessment, consider current and future use, and address the issue of whether and where anchoring at Constance Bank can occur without impacting the marine environment.
Our proposals have not resulted in action. Transport ÎÚÑ»´«Ã½ has told us that their intent was to limit discussions to the proposed jurisdictional change and not the more fundamental underlying environmental and aboriginal rights issues.
We have yet to receive a response from the federal transport minister after sending a letter setting out an approach to addressing these matters on Sept. 25, 2023.
We are now more concerned that unless there is a commitment to address the impacts of anchoring, we will continue to have a significant disconnect that will result in unnecessary conflict.
We would ask that those who share our concern for this important ecosystem and local fishing ground let the Transport ÎÚÑ»´«Ã½ know why giving the Vancouver Fraser Port Authority permission to manage this anchorage area near Victoria is a problem.
We remain committed to collaborating with Transport ÎÚÑ»´«Ã½, other implicated federal agencies, and all other interested parties to see what can be achieved. We need the Transport Minister Pablo Rodriguez to direct his officials to return to the table with an appropriate mandate to find solutions.
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