Feds face court challenge over Metro Vancouver port expansion that will endanger killer whales

Environmental groups levelled a legal challenge against the federal government’s recent decision to greenlight a massive Metro Vancouver port expansion project in Delta, B.C.

Approved in April, the Roberts Bank Terminal 2 project would double the existing facilities’ footprint and has 370 conditions attached to it aimed at protecting the environment and local species.

These conditions did not satisfy conservation groups, who argue the approval is “unlawful” because the expansion is contrary to the Species at Risk Act and therefore cannot be deemed “justified” under environmental assessment legislation.

Environmental law charity Ecojustice applied for a judicial review in Federal Court, challenging the project’s approval under the Canadian Environmental Assessment Act, according to a joint news release from the groups behind the application: the David Suzuki Foundation, Georgia Strait Alliance, Raincoast Conservation Foundation and the Wilderness Committee.

A 2022 federal review panel concluded the project would destroy endangered southern resident killer whales’ legally protected habitat in the Salish Sea, increase underwater noise and the risk of ships colliding with whales, and impact the availability of chinook salmon prey.

“Decisions like these are putting immense pressure on the 73 southern resident orcas left in the wild and increasing their chances of extinction,” Lucero González Ruiz, biodiversity lead at the Georgia Strait Alliance, said in the release. The Department of Fisheries and Oceans Canada’s website says “supporting their recovery is a key priority for the Government of Canada.”

The conservation groups also point out that some of the largest salmon runs in the world migrate through the Roberts Bank area.

“What’s the purpose of laws to protect the public, the environment and wildlife from irreversible harm if the government continuously overrides them in the name of supposed ‘economic’ benefits?” Charlotte Dawe, conservation and policy campaigner for the Wilderness Committee, said in the release. “We should not have to take the government to court in order for them to enforce their own laws so that human communities, the environment and wildlife are appropriately and effectively protected.”

The Impact Assessment Agency of Canada is “aware of the legal challenge” and told Canada’s National Observer in an emailed statement that “it is not appropriate to comment on the details of the litigation.”

“The Government of Canada is confident that its decision-making for the project was appropriate and consistent with its legal obligations,” reads the statement.

The Roberts Bank expansion is one of three “critical port infrastructure” projects that port authorities and project proponents say has been delayed due to “complex regulatory reviews and environmental assessments,” according to a Natural Resources Canada meeting note obtained through a federal access-to-information request by Canada’s National Observer.

The note — addressed to the associate deputy minister — was sent ahead of a meeting on supply chains and related initiatives set for Jan. 20, 2023. It highlighted approval of port infrastructure as an “additional challenge” to other supply chain issues such as the pandemic.

The proposed port expansion involves building a new three-berth marine container terminal and is estimated to cost more than $2 billion. The project is needed to keep up with shipping container demand and meet international trade objectives over the next 20 years, according to the Vancouver Fraser Port Authority, which is spearheading the expansion.

The Roberts Bank mudflats are a critical stop for migratory birds like snow geese and western grebe diving ducks, which make a pit stop to refuel on nutritious microorganisms called biofilm. During the environmental assessment, remarks prepared by Environment and Climate Change Canada said there are “no practical mitigation measures” to address the “potential large-scale impacts” the expansion would have on the ecologically rich mudflats and estuaries the shorebirds depend on.

A dozen scientists warned against the project last February, and that same month, Delta city councillors voted unanimously against the expansion.

The federal government says Roberts Bank Terminal 2 “will be key to supporting Canada's economic growth over the coming years” and alleviate expected congestion by increasing the port’s capacity by 50 per cent.

Natasha Bulowski / Local Journalism Initiative / Canada’s National Observer