Executive Summary: Key Legal and Evidentiary Issues

• Cabinet decided under CEAA 2012 that the Roberts Bank Terminal 2 project could proceed even though it is likely to cause significant adverse environmental effects.

• Federal and provincial environmental assessment processes, including an independent review panel, were used to identify residual and significant adverse effects and to develop mitigation and other measures.

• The review panel’s findings on effects to fish and marine mammals, underwater noise, habitat, air and water quality, and Indigenous use of lands and resources formed a central evidentiary basis for the Minister’s and Cabinet’s decisions.

• Canada relied on 370 binding project conditions and additional Crown initiatives, including marine shipping and species-related measures, to address project impacts.

• The court reviewed whether Canada’s environmental assessment record and mitigation framework reasonably supported Cabinet’s conclusion that the project’s significant adverse environmental effects are justified in the circumstances.

• The court upheld Cabinet’s Order in Council, so the federal environmental approval under CEAA 2012 remains in force and the project may proceed subject to the imposed conditions.

Facts and environmental assessment background

The case concerns a proposal by the Vancouver Fraser Port Authority to build and operate a new shipping terminal at Roberts Bank in Delta, British Columbia. The project is intended to expand the Port of Vancouver’s footprint in the Fraser River estuary. The federal environmental assessment proceeded under the Canadian Environmental Assessment Act, 2012, while a separate but parallel process took place under British Columbia’s environmental assessment legislation. Canada and British Columbia worked together to meet the requirements of their respective assessment laws, although the processes were conducted in parallel and the project will be on federal lands with impacts primarily within federal jurisdiction. The Canadian Environmental Assessment Agency and the Minister of Environment commenced the project’s environmental assessment in November 2013. The Agency determined the scope of the assessment, and the proponent submitted an environmental impact statement and a marine shipping addendum. The Minister decided to refer the environmental assessment to an independent review panel and established the panel’s terms of reference. During the panel phase, which ran from May 2016 to March 2020, the panel issued information requests to the Port Authority on fish and mammal habitat, underwater noise, habitat offsetting, air and water quality, and Indigenous groups’ current use of lands and resources for traditional purposes, among other topics. The panel gathered information from interested groups and government agencies and held public hearings. On March 27, 2020, it submitted its report to the Minister, finding that the project would have residual adverse effects after mitigation, some of which were significant, some not significant, and some of unknown significance. After receiving the panel report, the Minister sought additional information from the Port Authority, which paused the decision timeline. The Port Authority’s response and the Agency’s proposed project conditions were later posted for public comment in 2021. In April 2023, the Minister decided that the project is likely to cause significant adverse environmental effects within the meaning of sections 5(1) and 5(2) of CEAA 2012 and was therefore required to refer the matter to the Governor in Council. By Order in Council 2023-0330 dated April 19, 2023, the Governor in Council decided that the significant adverse environmental effects the project is likely to cause are justified in the circumstances and allowed the project to proceed, subject to conditions and future regulatory requirements. The next day, the Minister issued a decision statement setting out conditions with which the Vancouver Fraser Port Authority must comply during all phases of the project.

Environmental conditions, mitigation, and Crown responses

Consultation with Indigenous groups was integrated into the environmental assessment, with the Canadian Environmental Assessment Agency acting as the federal Crown consultation lead and coordinating a “whole of government” approach. The Crown’s approach relied in part on the proponent’s engagement and on the panel’s assessment, with the Agency guiding both. The panel’s terms of reference mandated integration of Aboriginal consultation into the regulatory process to the extent possible and required the panel to collect information on rights and propose measures to mitigate adverse impacts, without determining rights or the duty to consult. The panel’s March 2020 report included sections on current use of land and resources, physical and cultural heritage, potential or established Aboriginal and treaty rights, and potential effects on Indigenous groups in the United States. The Agency maintained a record of federal consultation and engagement with Indigenous groups and documented this in a Crown Consultation and Accommodation Report. That report described the consultation process and methodology, including the use of Agency guidance on assessing potential impacts on rights, and explained that, after the panel report, Indigenous groups were invited to draft or collaborate in drafting an impact-on-rights assessment. The Crown Consultation and Accommodation Report summarized the panel’s findings and explained that those findings and the responses to the Minister’s post-panel information request were considered in assessing impacts on Indigenous rights and in developing project conditions and Crown responses to the panel’s recommendations. Shared concerns of Indigenous groups were addressed through the proponent’s commitments, potential project conditions, a “whole of government” response to recommendations directed to the Crown, and additional Crown initiatives that were not specific to the project, including marine shipping initiatives and measures to address cumulative effects of marine shipping beyond the project’s direct effects. The project is subject to 370 conditions that are binding on the Vancouver Fraser Port Authority, including conditions addressing salmon, southern resident killer whales, and fishing boats, and the federal and British Columbia governments have also committed to additional mitigation initiatives.

Cabinet’s environmental justification decision

In the Order in Council, Cabinet recorded that the Government of Canada had consulted with Indigenous Nations potentially impacted by the project to understand their concerns and the nature and seriousness of potential impacts on Aboriginal and treaty rights, and to work collaboratively, where appropriate, to identify accommodations and respond to concerns. Cabinet noted that the panel’s report concluded the project is likely to result in residual adverse effects, including on current use of land and resources for traditional purposes and on the cultural heritage of Indigenous Nations, and on a number of Indigenous Nations whose territories overlap with the project area or project-related marine shipping area. Cabinet also noted that the Minister had considered the panel’s report, additional information from the Port Authority, subsequent public comments, and the implementation of mitigation measures he considered appropriate, and had decided that the project is likely to cause significant adverse effects. Cabinet stated that it had considered the interests of Indigenous Nations, including positions of consent or non-objection and concerns expressed, and was satisfied that the consultation process undertaken was consistent with the honour of the Crown and that potential impacts to interests, including established and asserted Aboriginal and treaty rights identified in the consultation process, had been appropriately accommodated. Cabinet further stated that it had considered the environmental effects of the project and the adverse effects on wildlife species that are at risk, the economic need for the project including its contribution to improving supply chain resilience and other economic benefits, the interests of Indigenous Nations, other social, economic and policy interests, and the broader public interest. Cabinet concluded that the significant adverse environmental effects the project is likely to cause are justified in the circumstances.

Judicial review focused on consultation and the environmental record

The Lummi Nation, a Coast Salish Indigenous Nation in Washington State with treaty rights in the United States and asserted but unproven Aboriginal rights in Canada, applied for judicial review to challenge the Order in Council. Lummi Nation opposes the project, stating that it will double the Port of Vancouver’s footprint in the Fraser River estuary and impact its established treaty rights in the United States and its asserted Aboriginal rights in Canada, including concerns about salmon populations, southern resident killer whales, and fishing boats. Lummi Nation’s challenge related solely to the Crown’s duty to consult and accommodate, which can arise when contemplated government conduct might adversely affect asserted but unproven claims to section 35 rights. Lummi Nation contended that Cabinet could not issue the Order in Council because Canada had not fulfilled its duty to consult on the project’s impacts. The court considered the environmental assessment process, including the panel’s work and the subsequent development of project conditions and Crown initiatives, as part of the overall record relevant to consultation and accommodation. The court found that Canada owed a duty to consult Lummi Nation on the project’s impacts by October 2021 but held that Canada did not refuse to consult or fail to fulfill its duty. The court concluded that Canada was not required to follow a formulaic approach to consultation and that, viewed as a whole and in light of the change in the legal landscape following the Supreme Court of Canada’s decision in Desautel, the consultation process with Lummi Nation was reasonable, meaningful, and honourable.

Outcome, successful parties, and monetary award

The court dismissed Lummi Nation’s application for judicial review, leaving Cabinet’s Order in Council in place and allowing the Roberts Bank Terminal 2 project to proceed subject to the conditions and future regulatory processes. The Attorney General of Canada and the Vancouver Fraser Port Authority were the successful parties in the proceeding. With respect to costs, the parties proposed, and the court accepted, that as between Canada and Lummi Nation, costs should be payable to the successful party in the fixed amount of $15,000. The court ordered that Lummi Nation shall pay $15,000 in costs to Canada. The judgment does not award any damages.