A tribal nation in the United States is seeking to block approval for a multibillion dollar port expansion in Canada, arguing that it holds transboundary rights and should have been included in consultation process.
The effort to block approval of a controversial new container terminal project in Vancouver marks the first major attempt to use a recent landmark decision by the Canadian supreme court, which found that some Indigenous peoples living in the US have rights in Canada.
On Thursday evening, the Lummi Nation filed a judicial review in Canadian federal court, seeking to quash approval of the Roberts Bank terminal expansion and arguing that Canada failed to “consult and accommodate” the nation on the “potential adverse impacts” the project could have on the community’s Aboriginal rights and title in Canada.
Canada’s federal government last month approved a container terminal expansion that would double the port’s current size, but environmental groups warned the project could have damaging effects for maritime species already on the brink of extinction. The port lies in a key habitat for endangered southern resident killer whales, the ailing chinook salmon they rely on for food, and dozens of other at-risk species.
Under Canadian law, the crown has a “duty to consult” Indigenous communities on projects that could adversely affect them, and throughout the project’s years-long review process, the Vancouver Fraser Port Authority has consulted with 46 Indigenous groups, drawing up agreements with 26 of them.
But the Lummi Nation, across the border in neighbouring Washington state, says it was absent from these consultations.
John Gailus, the Canadian lawyer representing the Lummi Nation, said it contacted the federal government during the review process for the port expansion but despite correspondence and a meeting, the government “was very clear that it wasn’t consultation”.
“They want to be consulted on these issues that clearly affect their US rights,” said Gailus. “But also on issues that affect their rights in Canada.”
In 2021, Canada’s highest court decided that section 35.1 of the country’s charter, which recognizes the treaty rights of “Aboriginal peoples of Canada”, applies to modern-day successors of Indigenous societies that occupied Canadian territory during European contact, even if those societies and their members, including the Sinixt, are now located outside Canada.
The Lummi, also known as the Lhaq’temish or the “people of the sea” describe themselves as “the original inhabitants of Washington’s northernmost coast and southern British Columbia”. Their nation is in Washington but before the northern US border blocked the movements of Indigenous peoples, the Lummi’s traditional fishing grounds extended up into what is now Canadian territory.
At the time, experts said the decision could recognize Canadian hunting and fishing rights for peoples in the United States whose traditional territory was north of the border. The ruling also raises questions over whether the nations whose members live in the US but have treaty rights in Canada need to be consulted over resource projects.
“It’s not like all the US tribes are going to be rushing to the border and saying ‘We want to hunt and fish, we want to be consulted’. It’s going to be on a case-by-case basis, where they have to show that they should be consulted,” said Gailus.
While he believes the Lummi have a long documented history in the region and feel their initial claim is strong, he admits that courts and governments are still trying to figure out the implications of the 2021 decision.
A spokesperson for the federal government said in a statement it would be “premature” to comment on the specific case, which will likely be heard in court at the end of the year.
“All they wanted was for the crown to just sit down and talk to them. To say, ‘Yes, we’re going to consult with you,’” said Gailus. “And if they had, potentially all of this could have been avoided.”
