A coalition of environmental groups and an Indigenous nation in Washington state are challenging Ottawa’s approval of a controversial marine terminal expansion in B.C.’s Lower Mainland.
The federal Impact Assessment Agency gave the green light to the Roberts Bank Terminal 2 project in Delta last month, provided it meets hundreds of legally binding conditions aimed at minimizing its risk to local ecosystems and protecting the land-use rights of impacted First Nations.
The project, led by the Vancouver Fraser Port Authority, would build a new three-berth terminal to support the region’s future trading needs. Over six years, the expansion is expected to generate $2.3 billion in GDP and $519 million in tax revenues. The port authority describes it as “essential to meeting Canada’s trade ambitions with Asia.”
This month, however, the David Suzuki Foundation, Georgia Strait Alliance, Raincoast Conservation Foundation, and Wilderness Committee filed for a judicial review of the approval in federal court, citing grave concerns for the health of local salmon and the endangered southern resident killer whale.
Represented by Ecojustice, the groups argue the project cannot be deemed “justified” under the Canadian Environmental Assessment Act if it runs contrary to Canada’s Species at Risk Act.
“The Fraser River estuary is a globally important region already suffering the effects of our human footprint,” said Misty MacDuffee, Raincoast’s wild salmon program director, in a Tuesday news release.
“It is a fallacy that the federal conditions will prevent Terminal 2 from causing harm to threatened wildlife species that rely on this irreplaceable habitat.”
The $3.5-billion Robert Banks port expansion will be funded by private investments and the port authority. According to the project’s website, the new terminal would be located in “deep, subtidal waters to minimize new environmental effects.”
Prior to its approval, councillors in the City of Delta unanimously opposed the project citing environmental concerns, as did a dozen scientists with expertise on Chinook salmon, southern resident killer whales and the Fraser River estuary.
Coastal First Nations in Canada and the Lummi Nation in Washington have also called for a full stop on the project until a cumulative impact study can be completed. Their concerns include impacts on their treaty-protected fishing rights and adverse effects on endangered species.
In 2020, a federal review panel found the terminal expansion would have “adverse residual and cumulative effects” on the ecosystem. It made 71 recommendations to mitigate pollution and noise, and on marine mammals, migratory birds, local socio-economic conditions, quality of life impacts, and more.
The panel found the project’s proposed offsetting plan for aquatic species, totalling 29 hectares, would be “insufficient to compensate” for the project-induced habitat loss of 177 hectares. Wetlands would be negatively affected, as would species including the barn owl, Dungeness crab, and Chinook salmon.
The report also noted the expansion would cause “significant adverse and cumulative effects” on use of lands and resources by several First Nations whose traditional territories overlap with the project and shipping area. The cultural heritage of the Tsawwassen First Nation and Tsleil-Waututh Nation, in particular, would suffer detrimental effects.
The port later changed its original proposal to reduce harmful effects.
The Lummi Nation has also filed for a judicial review of Ottawa’s approval of the project, claiming it should have been consulted.
In a statement published to its Facebook page, the Lhaq’temish said the approval violates the Supreme Court of Canada’s landmark R v. Desautel decision, “which confirmed Indigenous groups in the United States may have protected rights under the Canadian Constitution.”
“The expansion of the Port of Vancouver will have devastating impacts on our ability to revitalize our fisheries and exercise our rights,” said Lummi chairperson Tony Hillaire in the statement. “One-hundred and seventy-seven years ago, Lummi’s access to the land and resources that we relied upon since time immemorial was severed.”
According to the nation, the U.S.-Canada border cuts straight through its unceded and ancestral territory, which includes the northern coast of Washington and the southern British Columbia. The nation intervened in the R v. Desautel case, which dealt with Indigenous hunting rights on B.C. land, and in an evaluation of Canada’s new environmental assessment legislation.
In its application for judicial review, the nation said it also advised the federal government as early as 2016 of its interest in the Robert Banks expansion project area, and last October, sent a letter to the federal environment minister asking to be consulted, but never received a response.
In emailed statements, the Impact Assessment Agency said it is aware of the legal challenges but that it would be “inappropriate” to comment on details of the litigation.
The federal government “is confident” that its decision-making for the project was appropriate and consistent with its legal obligations, as was its consultation and engagement during the process, wrote spokesperson Karen Fish on Tuesday.
The agency has previously stated that the terminal project would increase the port’s capacity by 50 per cent, and without the expansion, “$3 billion in added GDP would be jeopardized by capacity shortages.”
Global News has reached out for further comment from the agency on the Lummi Nation challenge.
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In its own email, the port authority said it relied on federal legislation to determine which Indigenous groups it needed to consult with. Beginning in 2011, it said it consulted with nearly 50 Indigenous groups and has now established mutual benefit agreements with 26 nations who consented to the expansion project.
“Our focus is on advancing the project under our public-interest mandate in a way that protects and enhances the environment, is reflective of Indigenous priorities, and considers the needs of local communities,” wrote the port’s senior communications advisor, Alex Munro.
“Roberts Bank Terminal 2 is essential for Canada—with container trade on a long-term growth trajectory and west coast marine terminals almost at capacity.”
Last month’s project approval included 370 mandatory mitigating conditions.
The port authority, for example, will be required to install safe fish-passage infrastructure, develop habitat creation programs, limit in-water construction, use zero-emission cargo handling equipment, and monitor impacts on wildlife. It will also have to create a marine mammal detection and response plan, keep noise levels below a certain level, and reduce or delay activities when southern resident killer whales are present.
The approval comes with $45 million from Ottawa to “accommodate project impacts on Indigenous rights” by supporting local heritage and stewardship activities. The port authority must also provide a $150-million financial guarantee to ensure funds are available for the first three years.
– with files from The Canadian Press
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