A US tribal state is seeking to block approval of a multibillion-dollar port expansion in Canada, arguing it has transnational rights and should have been included in the consultation process.
The effort to block approval of a controversial new container terminal project in Vancouver marks the first major attempt to use a landmark decision recently issued by the Canadian Supreme Court, which found that some Indigenous peoples living in the United States had rights in Canada.
On Thursday night, Lummi Nation filed judicial review in Canada’s Federal Court, seeking to overturn approval of the Roberts Bank station expansion and arguing that Canada failed to “consult and accommodate” the nation on the “potential negative impacts” the project would have on Aboriginal and property rights in Canada.
Canada’s federal government last month approved an expansion of the container terminal that would double the current size of the port, but environmental groups have warned that the project could have harmful effects on marine species already on the brink of extinction. The port is a prime habitat for the endangered killer whales of the south, the sick Chinook salmon they depend on for food, and dozens of other endangered species.
Under Canadian law, the Crown has a “duty to consult” Indigenous communities about projects that could adversely affect them. Throughout the years-long project review process, the Fraser Port Authority in Vancouver consulted with 46 Indigenous groups, and entered into agreements with 26. who are they.
But Umma Al-Lumi, across the border in neighboring Washington state, says she has been absent from these consultations.
He contacted the federal government during the review process to expand the port, but despite the correspondence and meetings, the government “was very clear that it wasn’t a consultation,” said John Jelos, a Canadian attorney representing the Lummi Nation.
“They want to be consulted on these issues that clearly affect their rights in the United States,” Gelous said. “But also in cases affecting their rights in Canada.”
In 2021, Canada’s highest court ruled that Section 35.1 of the country’s charter, which recognizes “Aboriginal People of Canada” treaty rights, applies to modern-day successors to Aboriginal communities that occupied Canadian territory during European contact, even if those communities and their members, Including Sinixt, they are now located outside of Canada.
Lummi, also known as Lhaq’temish or “people of the sea” They describe themselves as “natives of the northern coast of Washington and southern British Columbia.” Their nation is located in Washington, but before the northern border of the United States prevented the movements of the indigenous people, the Lomé people’s traditional hunting grounds extended into what is now Canadian territory.
At the time, experts said the decision could recognize Canadian hunting and fishing rights for U.S. peoples whose traditional lands lie north of the border. The ruling also raises questions about whether countries whose members live in the United States but have treaty rights in Canada need to consult on resource projects.
“It’s not like all the American tribes are going to rush to the frontier and say ‘we want to hunt and be hunted, we want to be consulted.’ It will be on a case-by-case basis, where they have to prove that they should be consulted,” Gelus said. While he believes While Lummi has a long, documented history in the region and feels their initial claim is strong, he acknowledges that courts and governments are still trying to figure out the ramifications of the 2021 decision.
A federal government spokesperson said in a statement that it would be “premature” to comment on the specific case, which is likely to be heard in court at the end of the year.
“All they wanted was for the Crown to sit down and talk to them. Yes, we will consult with you,” said Jelus. “And if they had, all this could probably be avoided.”
