A court challenge is moving ahead that could potentially halt a proposal to double the size of Canada’s biggest container port, which sits on top of a sensitive estuary in Metro Vancouver.

Ecojustice, representing David Suzuki Foundation, Georgia Strait Alliance, Raincoast Conservation Foundation and the Wilderness Committee, will go to court later this year arguing the federal government contravened the Species at Risk Act in its approval of Roberts Bank Terminal 2 — a $3.5-billion proposed expansion of the existing Port of Vancouver in Delta, B.C. It operates in the Fraser estuary, which is integral for orcas and salmon.

Throughout a decade in the environmental assessment process, Roberts Bank Terminal 2 has faced opposition from municipalities, scientists, First Nations, community members, conservation groups, unions and even one of the port’s own tenants. 

The Vancouver Fraser Port Authority, a federal Crown corporation, received federal and provincial approval last year for the proposed expansion, which was a major milestone for the port authority in seeing Terminal 2 built. But the federal approval was swiftly met with two court challenges — one from Lummi Nation south of the Canada-U.S. border, pushing to be part of the assessment process, and the call by B.C. conservation groups for a judicial review. The challenges are expected to go to court back-to-back as early as June.

In response to the court challenge, the government and port authority called on the court to reject the conservation groups’ case and dismiss the application with costs.

With the future of the ecologically and economically significant estuary in the balance, here’s what you need to know.

Remind me, what does the Roberts Bank Terminal 2 expansion entail?

The Port of Vancouver currently sees $275 billion of trade pass through every year. The port is used to import goods like clothing, electronics and manufacturing parts from abroad, while exporting goods like pulp, lumber, coal and crops. The port includes four other sectors — cruise, automobiles, breakbulk and bulk — but the expansion only affects the container terminal.

The Vancouver Fraser Port Authority says its forecasts show more container capacity is needed. To meet the projected demand, it plans to build Roberts Bank Terminal 2. The project will widen the rail causeway leading to the port and build an artificial island about the size of 330 football fields to house three new berths, increasing container capacity on the West Coast by about 30 per cent and increasing the port’s container capacity by nearly 50 per cent. Put another way, it could handle an additional 2.4 million 20-foot shipping containers each year.

All of this work is planned for the Fraser River, which is the largest sockeye producing river in the world. 

Many First Nations, conservation groups and locals have long raised concerns about the environmental impact of the expansion. The Fraser River estuary is a biodiversity hotspot. Millions of birds stop at the estuary to rest and replenish partway through their journeys along the Pacific flyway, a migration route that extends from Alaska to Peru. Juvenile salmon also rely on the estuary in their migration.

The port authority has made agreements with 26 of the 48 First Nations it consulted with. The port authority told The Narwhal it pursued agreements with 28 nations total, and “positive” conversations on mutual benefits agreements continue with the remaining two communities. 

The port authority received the approvals it needed from the feds and the province to move ahead — but it has almost 400 conditions to meet, along with finding an operator for the new berths. 

It anticipates construction will begin in 2027 and will take about six years to build, and be operational in the early- to mid-2030s. It projects the terminal will add $3 billion to the economy every year. 

So what impacts are people concerned about?

At the heart of the debate around the Roberts Bank Terminal 2 is whether the port authority can fully offset the impacts of its concrete footprint in a sensitive and internationally recognized habitat that has already been degraded due to industry. 

One major concern is salmon. The Fraser River estuary is an integral stage in the salmon lifecycle, but has already lost 85 per cent of its salmon habitat, and the proposed project would deplete an additional 177 hectares. The already weakened habitat is far from its previous ability to sustain life. A 2022 study found 102 species in the Fraser estuary are at risk of local extinction between now and 2045.

Young salmon leaving the river need to stay in the estuary to feed, hide from predators, rest and adjust to salt water before heading out to the ocean. They’re already forced to leave the shallow eelgrass bed to swim around the existing terminal, and scientists are concerned the expansion would make it even harder for them to get back to safer waters.

“Because of these structures, they just get punted right out into Georgia Straight, and because they’re so small, and they haven’t osmoregulated yet and there’s too many predators out there that they just get eaten,” Misty MacDuffee, biologist with Raincoast Conservation Foundation, said in an interview. 

Salmon are essential food for endangered southern resident killer whales, of which only about 74 whales remain (the number is in flux. The Centre for Whale Research counted 75 whales last summer, but observers believe a calf died between December and January). Any decline in Chinook salmon impacts the critically endangered whales. 

Western sandpipers, a small shorebird that stops to refuel in the Fraser delta on its 10,000-kilometre migration, rely on the mudflats of Roberts Bank for biofilm, a layer of diatoms and bacteria. There is concern the port expansion could affect biofilm production that provides vital fatty acids for the birds.

What does the port authority say?

Danielle Jang, manager of external issues management and communications for the port authority, told The Narwhal in an email “our plan to protect the environment has been shaped by input from First Nations, Indigenous Knowledge holders, federal agencies, technical experts and the public.”

Jang said they use an “avoid, mitigate and offset” approach, and the port authority is developing a “comprehensive monitoring program in consultation with First Nations and regulatory agencies.”

“This includes a long-term follow-up program to ensure our predictions on the environmental effects are accurate, check whether our mitigations are working as planned and undertake an adaptive management process if measures are not working as intended,” Jang said.

MacDuffee said industrial changes don’t happen in isolation, and more and more development on the estuary piles up to wider degradation of the area — known as cumulative effects. MacDuffee points out the Trans Mountain pipeline expansion will also increase tanker traffic to 408 tankers per year, up from 60 per year. The compounding pollution, light, noise, dredging and physical obstacles “starve the estuary” and impact the entire ecosystem’s function, MacDuffee said.

The port has taken some measures to slow down ships and reduce noise, but those measures are “not enough to mitigate the increased noise” from Terminal 2 and the Trans Mountain expansion, MacDuffee argued. Marine traffic noise and lights impact the whales’ abilities to hunt and communicate through echolocation. The passage of a large container ship can reduce a southern resident killer whale’s echolocation range from 400 metres in quiet conditions to just 60 metres.

“We are not advancing the recovery of southern resident killer whales. And we continue to make decisions that degrade their critical habitat,” she said.

The port authority has committed to restoring 86 hectares of salmon habitat (compared to the 177 hectare imprint of the new terminal) but MacDuffee and other critics have pointed out this is planned for other areas that don’t make up for the impact on juvenile salmon in the estuary, an integral place for them to grow and develop.

“You can’t tell wildlife where they should live,” Charlotte Dawe, conservation and policy campaigner for the Wilderness Committee, said in an interview.

“You can’t destroy their critical habitat that they rely on and hope that they use another area that you create.”

Why do conservation groups say the federal government’s approval of Roberts Bank Terminal 2 was unlawful?

First, we have to understand the environmental review process. 

The federal impact assessment process found the expansion would impact many species including endangered southern resident killer whales, which are listed under Canada’s federal Species At Risk Act.

The assessment process also found there would be impacts on salmon, Dungeness crab, barn owls, western sandpipers and other species. The final report outlined impacts on the ability of First Nations to fulfill their harvesting and access the water, and broader human health impacts due to light, noise and pollution. 

The assessment process also does not consider the need for a project — so, in this case, whether container capacity is actually an issue.

After the impact assessment, it was up to Minister of Environment and Climate Change Steven Guilbeault to review the federal impact assessment report and conclude whether the project was likely to have significant environmental effects, and pass that conclusion on to cabinet.

Despite Guilbeault’s conclusion the project would have significant adverse effects, cabinet approved the terminal expansion — subject to an unprecedented 370 conditions. Cabinet argued the public interest superseded the impacts, and therefore the project was justified.

On behalf of the conservation groups, Ecojustice argues the cabinet could not deem the project as “justified” when that decision was not in line with the Species At Risk Act. The act prohibits the killing or harming of listed species or destroying critical habitat that is likely to result in harming the species.

This could be a potentially precedent-setting case, Dyna Tuytel, a lawyer with Ecojustice, said in an interview. She hopes the case will have a long-term impact on “taking the Species At Risk Act seriously and not treating it as an afterthought.”

The act leaves ultimate decisions up to cabinet — so the act is “only as strong as the will of the government in power,” Dawe said.

Winning this case would mean “the laws we have to protect wildlife that are faced with extinction can actually hold up against governments who continue to greenlight harm,” she added.

The respondents — the minister of environment and climate change, the attorney general of Canada and the port authority — dismissed the conservation groups’ arguments as “incorrect” and rebutted that the environment minister met his obligations under the act. They argued cabinet was within its rights when it decided the mitigation measures were satisfactory to “avoid or lessen the likely adverse effects” on species listed under the act.

What about the Lummi Nation court challenge?

This challenge would require Canada to consult with the Lummi Nation south of the border, which alleges Canada failed its obligations and demands inclusion in the consultation process.

The nation references the precedent-settling 2021 case R v. Desautel, in which the Supreme Court of Canada recognized the Sinixt have inherent Indigenous Rights to hunt and harvest on their traditional territory in Canada, despite being considered an ‘American’ tribe.

“The claim is … Lummi had a right to be consulted in this case, given the proximity of the project to areas that they’ve historically exercised rights, both marine and terrestrial,” the nation’s lawyer John Gailus told Cascadia Daily News.

This could add further delay, but cannot ultimately halt the project.

And you mentioned some First Nations are on board?

This is also a mixed bag. The project impacts nations close to the terminal itself, like Tsawwassen and Musqueam First Nations, while the shipping route has far-ranging impacts, including Pacheedaht and Ditidaht First Nations on Vancouver Island. Some First Nations governments support the project, some don’t. Many expressed concern early on in the process with the impact on harvesting, water quality and human health due to light, noise and air quality.

While 26 First Nations governments have signed onto the project, not all individuals in those nations agree with those decisions. 

Tsawwassen First Nation cited significant concerns with the project, and eventually signed a relationship agreement in 2021. The nation “will rely on this agreement to continue to ensure Tsawwassen Treaty Rights are protected,” sxʷamisaat Chief Laura Cassidy said in a statement when the feds approved the project last year. 

Cassidy said the 370 federal conditions give Tsawwassen “a significant oversight role” in the construction and implementation of the expansion, as well as the nation’s agreements with the port authority. “We intend to exercise that authority to ensure that the port authority is held to the highest standards at all times,” she said.

“We are satisfied with how far we were able to push the mitigation and accommodation measures for addressing impacts to Tsawwassen’s Treaty Rights. On that basis, we have provided consent for the project, however, we are not advocating for it,” she continued.

Musqueam also signed a relationship agreement with the port authority in 2021. Snuneymuxw First Nation requested the province either deny the approval or require the regulators and port authority to work with the nation to collect information on the expansion’s impact on Snuneymuxw.

Where is B.C. in all of this?

In September, the province also issued an environmental certificate. The ministers of environment and transportation cited environmental concerns, but said the province could not practically do anything to stop the project. 

In a statement of decision from the provincial Minister of Environment and Climate Change Strategy George Heyman and Minister of Transportation and Infrastructure Rob Fleming agreed “there will likely be significant adverse environmental effects from Roberts Bank Terminal 2” and “not all effects would be fully mitigated,” including impacts on wetlands, human health, salmon and greenhouse gas emissions.

The B.C. ministers said they had no practical way to halt the project since the project is mostly on federal Crown land under the jurisdiction of a federal Crown corporation. The B.C. environmental assessment is limited to matters of provincial jurisdiction and B.C.’s assessment act “cannot be used to prohibit the development of the project,” the ministers wrote in their statement of decision. 

“If we chose to decline the project it would have no practical effect other than to prevent us from imposing conditions that address matters of provincial interest,” they explained.

B.C. imposed 16 conditions including a wetland management plan and a greenhouse-gas reduction plan.

That means the federal and provincial environmental impact assessments both concluded the project was likely to have significant adverse effects that could not be mitigated, and both the federal and environment ministers agreed with those findings, but the project was approved anyways.

OK … so is it a done deal if Canada wins the court case? What happens next?

The port authority has to meet the 16 legally binding provincial conditions and 370 conditions set out by the feds, including consulting with Indigenous Peoples, developing greenhouse gas management plans, mitigating atmospheric noise, vibration and light pollution. It must also investigate the feasibility of opening a breach in the causeway to allow fish to pass through closer to shore, instead of swimming around the entire port.

It also needs Fisheries Act permits and Species At Risk Act permits. Tuytel said it’s rare for those permits to be denied, though Fisheries and Oceans Canada did flag during the review process it may not be possible to admit the permit if the project would jeopardize a species’ survival or recovery. 

Provided it meets all of these requirements and the court case doesn’t block Canada’s approval, the project goes ahead.

The port authority declined an interview, but in an emailed statement to The Narwhal, senior communications advisor Alex Munro said it expects its focus in 2024 “to be on submitting a Fisheries Act authorization and continuing First Nation consultation and collaboration.”

MacDuffee argued the federal conditions don’t outline the rigour needed to mitigate harm. For example, she pointed to the condition to look at the feasibility of breaching a hole beneath the causeway.

“If they deem that it’s not technically or economically feasible, then it doesn’t have to be done,” she said.

“It doesn’t say ‘You will build breaches, you will once and for all solve this problem.’ ”

Updated Feb. 21, 2024, at 5:18 p.m. PT: This article was updated to correct a statement that the expansion project would “double the port’s capacity by 50 per cent,” which is incorrect. It would double the physical footprint of the current container port, and increase the port’s container capacity by 50 per cent. It was also edited to clarify the expansion will increase container capacity specifically by 50 per cent — not the general capacity of the port as a whole, which also includes four other business sectors (cruise, automobiles, breakbulk and bulk).

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Environment and Climate Change Canada Minister Jonathan Wilkinson has given the Vancouver Fraser Port Authority more homework to do before he’ll decide on the fate of Roberts Bank Terminal 2.

In a six-page letter to Robin Silvester, CEO of the port authority, Wilkinson flagged “gaps in information” on the project’s risks to vital salmon habitat, critically endangered southern resident killer whales, migratory birds, human health and First Nations’ use of the area for traditional practices — as well as the port authority’s plans to minimize those harms. 

Wilkinson’s Aug. 24 order came days before the U.S. Environmental Protection Agency flagged concerns about the project’s impacts on Indigenous communities south of the border, as well as effects on orcas and migratory birds. 

The minister’s request, welcomed by some opponents of the port expansion, is expected to delay a decision on whether the project should be allowed to proceed until next year.

“I’m really encouraged that he is asking very pertinent questions and requesting specific, detailed information about mitigation … and the implications of the project,” said Misty MacDuffee, a biologist and wild salmon program director with Raincoast Conservation Foundation.

Her concern is that the port may not be able to collect all the information Wilkinson requested — including on potential impacts on southern resident killer whales — within a reasonable timeframe. 

If that’s the case, there will continue to be uncertainty about how effective proposed mitigation measures will be, MacDuffee said.

“Things cannot get worse for these whales if we have any hope of recovering them,” she said. “And this project … is going to make it worse for whales.”

In a statement to The Narwhal, Duncan Wilson, the port authority’s vice-president of environment, community and government affairs, said: “We believe much of the information we have been asked to provide will, on top of our existing proposed mitigation measures, demonstrate how we will further reduce project-related effects.”

Expansion would impact 177 hectares of the Fraser River estuary

The Roberts Bank expansion involves building a new three-berth container terminal and expanding the existing causeway and tug basin across 177 hectares of the Fraser River estuary, which serves as critical habitat for salmon, orcas and migratory birds. 

The project, which would double the size of the existing terminal, would be immediately next to Tsawwassen First Nation’s lands and would add to existing industrial pressures in the area, further impacting the nation’s food security and access to the land and water.

According to Wilson, Terminal 2, which would see a jump from 329 vessels last year to 468 by 2035 if the project proceeds, “is needed to facilitate Canada’s growing trade with Asian markets beyond the mid- to late-2030s.” 

Roberts Bank Terminal 2 would make Fraser River estuary a ‘giant parking lot,’ observers warn

Wilkinson asks for more details on threats to salmon, orcas before deciding project’s fate

Citing the findings of a federally appointed review panel, Wilkinson said the expansion would likely have “significant adverse effects,” even with the port authority’s existing mitigation measures. The minister said he needs more details to determine whether those mitigation measures are feasible.

Wilkinson asked how the project would affect the abundance and accessibility of crabs and how that, in turn, could impact First Nations food security. 

He also requested a description of planned offsets to replace fish habitat that would be destroyed by the expansion and asked the port authority to summarize the effectiveness of its past offsetting projects.

Environment and Climate Change Canada Minister Jonathan Wilkinson has raised concerns about the port expansion’s potential impacts on fish habitat and Indigenous ways of life. Photo: Michael Snyder / Raincoast Conservation Foundation

Wilkinson said he wants a plan that times construction work for periods when southern resident killer whales aren’t in the area, as well as an exclusion zone, ways to detect the orcas’ presence in the exclusion zone and a plan to stop activities when they enter the area to minimize the impact of noise on the endangered population.

He asked for updated estimates of the sound levels orcas would be exposed to from port operations and increased marine shipping as well as confirmation of projected vessel traffic, including traffic levels beyond 2035.

As well, Wilkinson asked the port authority to reassess how much the southern residents’ echolocation would be masked by noise associated with the project and to provide a plan to mitigate underwater noise from operations and, where possible, marine shipping. 

A key issue Wilkinson raised concerns about was the southern residents’ behavioural response to continuous noise.

But addressing the scientific uncertainty around that question will be a “big job,” MacDuffee said.

“What we assume now is that these effects of noise can only be mitigated by lowering the number of vessels and the sound of these vessels — that slowing them down is potentially just a trade-off for longer exposure,” she said. 

Along with noise, the project has the potential to cause further harm to chinook salmon, a key food source for the southern residents.

“We cannot say that we are going to try and save and recover salmon populations in the Fraser and go ahead with this project,” MacDuffee said.

Questions remain on risks to migratory birds

James Casey, the Fraser River estuary specialist with Birds Canada, said he was disappointed with the lack of additional information Wilkinson requested on impacts to migratory birds. 

The Fraser River estuary is globally significant habitat for migratory birds, including western sandpipers, a small shorebird that stops to refuel in the Fraser delta on its 10,000-kilometre migration from Peru to Alaska. These birds rely on biofilm, a layer of diatoms and bacteria, on the mudflats at Roberts Bank for vital fatty acids, and there is concern the port expansion could affect biofilm production. 

Sandhill cranes are seen along the Fraser River Delta, a vital feeding area for migratory birds. Photo: Jerry McFarland / Flickr

Given that the federal review panel was unable to determine whether the port expansion would impact the population levels of western sandpipers, the request for additional information was an opportunity to address that uncertainty, Casey said.

“But the minister decided not to take that approach,” he said. 

Wilkinson asked the port for additional modelling related to potential impacts on shorebirds in the event that different on-site design options were being considered.

Casey said he believes the federal government should reject the project given the risks to a broad suite of species, including migratory birds, and launch an estuary planning process.

“We have responsibilities, yes to the birds and the biodiversity of the region, but also to the people along the flyways from countries such as Peru and Mexico and the U.S. to make sure that we do our part to protect these bird species, and I think that’s an obligation that we are dropping the ball on right now,” he said.

U.S. EPA weighs in, urging adoption of mitigation measures

Organizations on the other side of the border have also raised concerns about the terminal expansion. The U.S. Environmental Protection Agency wrote to the Impact Assessment Agency of Canada on Aug. 27 in support of concerns that had already been raised by the Suquamish Tribe, the Lummi Nation, the National Audubon Society and the Washington State Department of Ecology. 

“Consistent with this input, EPA recognizes that salmon, shellfish and other marine life are the foundation of many of the Pacific Northwest tribes’ subsistence, economy, culture, spiritual life and day-to-day existence,” the agency wrote.

“EPA encourages decisions — and, where appropriate, measures and practices — that ensure that the significance and integrity of way-of-life activities will be maintained during the proposed activities,” the letter continued.

The agency called for measures to reduce harms to the southern residents and urged the Vancouver Fraser Port Authority to “firmly commit to developing biofilm habitat in the Fraser River estuary to offset the potential impacts” to migratory birds, including the western sandpiper.

Roberts Bank Terminal 2 decision likely delayed to next year

The port authority has requested an extension of the timeline for a federal decision on the project, given the additional information sought by the minister and requests from some Indigenous groups for further consultation.

In his statement, Wilson noted the report from the federal review panel was released in the midst of a global pandemic, which posed challenges for in-person consultation.

Minister Jonathan Wilkinson has asked the port authority for more details on its planned mitigation measures to offset the impacts of its proposed expansion project. Photo: Michael Snyder / Raincoast Conservation Foundation

“During our remote consultation with Indigenous groups over the last few months, groups have asked for more time to support their participation and their own internal community process, and we want to support and respect these requests,” he said.

“We believe that meaningful consultation and engagement with Indigenous groups is key to building this project in the right way,” he said.

In its letter requesting the extension, the port authority noted that while “a delay could have some implications for the project commencement date should all approvals be obtained, we believe that such implications would be manageable, and it is preferable to take the time necessary to support the above noted activities.”

Wilson said the port authority is aiming to provide the requested information by early next year and hopes a final decision on the project will be made before the summer of 2021. 

— With files from Stephanie Wood

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When Tsawwassen Chief Ken Baird, whose ancestral name is swənnəset, looks at where the Fraser River meets the ocean, he worries about the effects of industry on the water that is a life source for his people. 

“It’s a real challenge to protect our land given all that is happening on the Fraser,” he said. 

“It’s becoming harder to be stewards of the Salish Sea.”

Baird said industry is impacting the nation’s food security as salmon, eulachon and sturgeon populations decline. As a result, the community has become more reliant on Dungeness crab. Now, all these species face a new threat: the proposed expansion of the Port of Vancouver’s container terminal at the mouth of the Fraser River. 

The existing terminal at Roberts Bank, Deltaport, juts across an eelgrass bed that provides shelter for migrating juvenile salmon. The Roberts Bank Terminal 2 project would double the size of Deltaport, creating an artificial island about the size of 150 football fields. The Fraser estuary has already lost 70 per cent of its salmon habitat, and the proposed project would deplete an additional 177 hectares. 

Deltaport transects an eelgrass bed that provides vital habitat for juvenile salmon. Photo: Vancouver Fraser Port Authority

Cliff Stewart, vice-president of infrastructure at the Vancouver Fraser Port Authority, told The Narwhal by email that the proposed location poses the least impact on the environment and nearby communities.

“We are confident that we can proceed with this project in a way that protects the environment,” he added.

The federal government has until November to make its decision on whether or not to approve the project. In the meantime, the port is pursuing environmental and regulatory permits.  

Project would further endanger chinook salmon, impede nation’s ability to access its aquatic ‘front yard’ 

Baird doesn’t see the project in isolation but situated within widespread degradation of the Fraser River. The lower Fraser is already a centre of industrial activity, lined with warehouses and manufacturers, the BC Ferries Tsawwassen terminal and other marine terminals like the Fraser Surrey Docks. In addition to Terminal 2, several other industrial projects are proposed along the lower river, including the Trans Mountain pipeline expansion, a jet fuel storage facility, an LNG export terminal and a coal export terminal. 

A federally appointed review panel concluded the Terminal 2 project would have “significant and adverse cumulative effects” on two populations of chinook salmon, including a threatened population in the lower Fraser River, southern resident killer whales, Dungeness crab and the ability of people from Tsawwassen First Nation to access the water, which has already been impeded by industry.

“Members indicated they could no longer walk along their foreshore or gather marine resources for communal activities … [and] stated that the ability to play in the ‘front yard’ of the nation had been taken from their youth and future generations,” reads the panel’s report, which was released in March.

Baird said the health of Tsawwassen culture and language relies on the health of the land and water. In hən̓q̓əmin̓əm̓, the word sc̓əwaθən, or Tsawwassen, means “the land facing the sea.” 

Tsawwassen First Nation reserve lands are very close to Roberts Bank and residents face risks associated with increased pollution and noise. Already, Baird said, “the light and noise from the existing port is constant.”

“When it’s high tide, you can hear things clear as day. They’re about five kilometres from us out there. But on a clear night, when the water is high, it sounds like they’re just a few hundred feet away,” he said.

The noise and lights from Deltaport already disrupt life on Tsawwassen First Nation reserve lands. Photo: Carol Linnitt / The Narwhal

The panel found the project would result in significant adverse effects on human health due to exposure to nitrogen dioxide and particulate matter (PM2.5), which can lead to heart disease and respiratory infections. A 2019 study led by a researcher the University of British Columbia looked at particulate matter and found a higher rate of deaths among Canadians who lived in high-pollution areas compared to low-pollution areas.

On its website, the Port of Vancouver lists the “environmental benefits” of the project, including a plan to offset the effects of development with “the potential to make a meaningful contribution to the future health and recovery” of chinook salmon and southern resident killer whales.

But the review panel said the port’s proposed offsetting plan is “not sufficient,” since it offsets about 27 hectares while the project would destroy 177 hectares.

Baird said he’d like to see more efforts to enhance the environment on the Fraser, not just mitigate damage.

“[Industries] have an obligation to do enhancement to make up for their projects,” he said.

Tsawwassen First Nation recommended to the review panel that the Port of Vancouver prioritize the restoration of the foreshore and deteriorated marshland and put aside the necessary funds for the restoration in escrow prior to the project’s approval.

The nation signed a memorandum of agreement with the port in 2004 regarding development at Roberts Bank, but it is negotiating an addendum to the agreement because it says the proposal has changed “significantly” in the years since the agreement was signed. The memorandum is separate from the federal approval process.

The panel issued its report to the federal government in March with 71 recommendations, including ways to address negative impacts on wildlife, air quality and the ability of Tsawwassen First Nation and Musqueam Indian Band to harvest.

Stewart said the port authority takes the panel’s concerns seriously, but since the west coast is expected to run out of container capacity by the end of the decade, the project “is of paramount value to Canada’s trade.”

‘Frontier mentality’ fails to consider cumulative effects

David Scott, a biologist with Raincoast Conservation Foundation, wrote about the need to consider the cumulative effects of industrial development along the Fraser in a recent report called Toward a Vision for Salmon Habitat in the Lower Fraser River.

“There’s a push to increase infrastructure, but that infrastructure is already responsible for disconnecting over 1,000 kilometres of salmon habitat,” he told The Narwhal.

“It’s really just turning the estuary into a giant parking lot.”

In the report, Scott and two co-authors said if several proposed projects on the Fraser are approved, there will be a “cumulative increase in container and tanker traffic” and underwater noise. This poses a more significant risk for marine life, like salmon and southern resident killer whales, than a single, isolated project. 

The proposed Roberts Bank Terminal 2 would make southern resident killer whales more vulnerable to underwater noise, ship strikes and the reduced availability of chinook salmon. Photo: Thomas Lipke / Unsplash

Stewart said the port authority has plans to mitigate noise during construction and once the terminal is operational. For instance, the port will enlist marine mammal observers to identify when a mammal is in the area and stop construction accordingly and do long-term monitoring.

The expansion would further obstruct young salmon that already have to leave the safety of the eelgrass bed to swim around the existing causeway, forcing them into deeper, more saline waters when they are young and still adapting to salt water. Scott is concerned this will further weaken struggling chinook populations and the southern resident killer whales that rely on them for food. Southern residents are listed as endangered under the Species at Risk Act with just 73 whales left.

Misty MacDuffee, a biologist with Raincoast Conservation Foundation and co-author of the Vision for Salmon report, said noise from increased traffic would further impact the whales’ ability to hunt. The passage of a large container ship can reduce a southern resident killer whale’s echolocation range from 400 metres in quiet conditions to just 60 metres.

“This project is significantly worse than Trans Mountain in terms of an increase in traffic,” she said. 

The Trans Mountain pipeline expansion would increase tanker traffic in the Burrard Inlet from five to 34 tankers a month, or 408 tankers a year. With Terminal 2, the port authority estimates annual traffic at Roberts Bank will increase from 329 vessels in 2019 to 468 vessels by 2035. But those increases aren’t often examined side by side, said MacDuffee.

The proposed Deltaport expansion would provide an additional 2.4 million 20-foot equivalent units of container capacity per year, doubling the Port of Vancouver’s current capacity. Photo: Vancouver Fraser Port Authority

“The cumulative effects piece doesn’t get considered,” she said. “As if everything else is just fine, it’s just one project. But the stressors on salmon or southern resident killer whales are huge.”

She called it a “frontier mentality” of exploitation even as species inch closer to extinction.

“We have a crisis. It’s not like we don’t know,” she said. “I don’t know why we continue to go down this road. Priority continues to be economic development at any cost.”

While many are concerned the terminal will lead to increased traffic, Stewart said the total number of ships coming through the Port of Vancouver is not expected to change, but the ships will be bigger and more will dock at Roberts Bank instead of other terminals.

“What will change is the size of the ships, which will be slightly larger on average if the project proceeds, and the amount of cargo loaded and unloaded in Vancouver, which will increase by approximately 33 per cent,” he said.

Time for ‘bold and disruptive ideas’ to save salmon

In the Vision for Salmon report, Scott and his co-authors sought solutions to restore salmon habitat. They said Terminal 2 needs to be reviewed in the context of dredging and water pollution by industry, flood infrastructure that also obstructs salmon and climate change. 

They recommended all levels of government enact “fish-first policies” for land and water use by prioritizing fish-friendly infrastructure and preventing development in key habitats.

“Our vision is to really try to reconnect the estuary,” Scott said. “One of the key pieces is not to do any more damage.”

They held workshops with First Nations, communities and organizations about what future they wanted for the river. Ideas included better collaboration between governments, more nature-based solutions and more funding for Indigenous guardians programs.

Another idea was to reflood Sumas Lake, which was drained by settlers in the 1920s to drive away mosquitos and create more farmland. The lake played an important role in absorbing freshet and providing habitat for salmon and game. Flooding the lake would require extensive planning and moving residents who occupy the land, now called Sumas Prairie.

Raincoast Conservation Foundation is calling for fish-friendly policies such as prohibiting development in key habitat areas like Roberts Bank. Photo: Fernando Lessa

As salmon populations dwindle, Dixon said it’s time for this kind of “bold and disruptive idea” that puts value in habitat restoration not financial payoff.

Murray Ned from the Semá:th (Sumas) First Nation said reclaiming the lake could also be a more cost-effective solution for flood control than dikes and pump stations which constantly need to be maintained.

“The reality of continuing to build these man-made infrastructure may not be the way to go,” he said. “Maybe [we] need to start reclaiming some of the lake to provide some flood relief.”

Another idea that’s been shown to work is knocking holes through infrastructure that blocks salmon migration paths. Raincoast partnered with Fisheries and Oceans Canada to breach three holes through the Steveston jetty in Richmond, B.C., to make way for juvenile salmon.

Like the terminal, jetties force small salmon that typically stay close to the shoreline out into deep, salty, predator-filled waters. MacDuffee said they’ve seen all five species of salmon using the breaches to get to a marsh blocked by the jetty.

“It’s amazing,” she said. “They haven’t been able to get to that marsh for 100 years.”

She said that after a century of habitat degradation, she didn’t think they’d see the benefits so quickly. It gave her hope that removing infrastructure and halting development can lead to salmon recovery.

“It shows that if we remove it, they will come,” she said.

But MacDuffee said there is little use in local restoration projects if they are constantly being “outpaced” by new developments like Roberts Bank.

“The first thing in recovery is to stop doing the harm,” she said.

“We can keep going down this road with making really bad decisions that have implications for species that many people rely on, or we can say no to projects and really double down and invest in the recovery of these wild populations.”

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By Silke Nebel, VP conservation and science, Birds Canada, and Gauri Sreenivasan, director of policy, Nature Canada.

COVID-19 has put us in reactive mode. Our government’s immediate focus is on mobilizing short-term measures to secure the health and well-being of Canadians. When the time comes for our country to chart its recovery, these same principles must guide the response to projects that could harm the environment and human health.

The chance to demonstrate leadership could come following the late March release of a long-awaited report from an independent federal review panel. The panel was assessing the viability and impact of the Roberts Bank Terminal 2 project — a massive container terminal proposed for British Columbia’s Fraser River Delta.

The report concluded the project would have significant adverse environmental effects on wildlife, human health, and for First Nations’ traditional use of their territories. At the same time, the federal panel said the project would support “competitiveness for Canadian markets” as it would increase marine shipping and contribute to business opportunities and economic development.

Given the impacts of COVID-19, the government has understandably extended the decision-making period on the project until November. When that time comes, the Canadian government will find itself staring down diverging pathways. The first is the path of the past: a nature-damaging infrastructure project that was conceived in the very-different economic circumstances of yesteryear. The other is a forward-looking path that incorporates the critical role of natural ecosystems in economic development and our health. This positioning requires a rethinking of how transport, industry and nature’s needs can be best harmonized within this vital marine gateway.

Nature Canada and Birds Canada urge the government to take the latter path, rather than approving the project for the sake of uncertain and costly economic gain. Roberts Bank is an opportunity for the Canadian government to chart economic recovery in a way that respects the interconnectedness between planetary health and a thriving economy. 

The environmental stakes are high. The area impacted by the proposed Terminal 2 project is home to more than 100 at-risk wildlife species. The delta has been designated as an internationally significant wetland as well as an important bird and biodiversity area.

It’s also a wildlife superhighway for pods of whales and endangered orcas, and our country’s largest migration of wild salmon. Even while human air travel is on hold, millions of migratory birds can be found flying along this corridor — including nearly the entire global population of western sandpipers and other shorebirds that rely on this vital feeding area when migrating between Alaska and Panama. 

Recent weeks have focused on humans as the at-risk species. Natural areas like the Fraser River Delta are critical for human health. Wetlands clean our water and air and provide a destination where we can seek solace in nature. Further, these territories are central to the tradition and identity of local First Nations, and any additional destruction of land risks health, culture and well-being. But there is no legal framework in place to protect the Fraser River Delta’s ecological health — and, in turn, the health of the people who depend on it.

Sandhill cranes are seen along the Fraser River Delta, a vital feeding area for migratory birds. Photo: Jerry McFarland / Flickr

The federal panel recommends developing a long-term intergovernmental environmental management plan for the Fraser River Delta and the Salish Sea. This makes eminent sense. This plan requires consultation and must be co-developed with local First Nations. Done well, the plan could chart a new future for the delta and demonstrate the government leadership needed to address not only COVID-19 recovery, but the world’s climate change and biodiversity crises, too.

The Canadian government has signalled its commitment to address the unfolding biodiversity crisis. Acting on an election promise, the government made historic commitments to safeguard habitat by protecting at least 25 per cent of land and ocean by 2025. 

We applaud this leadership, and it’s a critical step toward larger-scale protections for nature. But Canada is only about halfway to its targets. We need to make the right decisions today to conserve wildlife, invest in protected areas, and ensure nature thrives as a foundation for economic and social well-being.

Cabinet should say no to the Roberts Bank Terminal 2 project. The more we learn about the origins of this pandemic and its links to the destruction of natural habitat, the more apparent it becomes that biodiversity and natural ecosystems are integral to the survival of our future generations. 

There is no better or more important time to re-centre our commitment to nature and the health and well-being of our communities. This balance must include the places we have earmarked for intense economic development.

Canada has some of the world’s last wild places. Are we keeping our promise to protect them?

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The federal government is considering privatizing Canada’s port authorities, a move that could further hinder public oversight and control over the export of commodities such as coal and crude oil.

On Nov. 14, the federal government announced the hiring of Morgan Stanley Canada to "provide financial advice to the Government related to the recommendations [contained in the Canada Transportation Act Review] concerning ports, including receiving proposals from institutional investors or private equity investors."

(Until 2015, an investment unit of Morgan Stanley was the owner of the largest terminal at the Port of Montreal.)

The recommendations contained in the review included "examining the feasibility and viability of adopting a share-capital structure for Canada Port Authorities.”

The review also stated that Canada “must make some hard choices and inject private sector discipline into the process” in order to “go to the next level and position itself for the lon­ger term.”

It’s no coincidence the entity responsible for hiring Morgan Stanley was the Canada Development Investment Corporation, which specializes in the “divestiture of assets of the Government of Canada.”

This possibility is concerning on both the climate change front — with terminal owners already able to export fossil fuels effectively unchallenged to other jurisdictions — and for public health reasons, given the potential for increased diesel particulate matter, spills, coal dust and noise exposure.

“I don’t know what they’re thinking,” says Peter Hall, director and professor of urban studies at Simon Fraser University and expert on port institutions. “Privatizing them would go against everything that we know about the way ports operate in such a huge country.”

Privatization of Ports Would Further Hinder Transparent Decisionmaking

Since the introduction of the 1998 Canada Marine Act, the country’s 18 Canada Port Authorities (CPAs) been have run as “non-share capital corporations,” with board appointments finalized by the federal transport minister.

There are already many criticisms of the entities, mostly related to mixed mandates — they serve as both promoters and regulators of trade — and a board nomination process that grants considerable power to port users (for instance, only one of 11 board members represent the 16 municipalities within the Port of Vancouver’s jurisdiction while port users have seven seats).

Kevin Washbrook, director of Voters Taking Action on Climate Change, says it’s currently a challenge to ensure the public interest is met by port authorities. But he says it currently remains somewhat possible due to being able to acquire port documents with access to information requests; there are also changes underway, he says, to require lobbyists to log communications with senior employees of port authorities in the federal lobbying registry.

Those would no longer be options if port authorities are privatized. All decision-making about the permitting of terminals like Port of Vancouver’s Roberts Bank Terminal 2 Project, a proposed container terminal feared to have potential species-level impacts of migratory bird populations, would be even further in the shadows.

“Ports are the vehicle for delivering the federal trade agenda,” he says. “We are already struggling with that trade agenda here on the West Coast, whether it’s fossil fuel terminals or massive expansion of container ports. It’s hard enough as it is to have public input into those decisions. How is that possibly going to happen if ports are privatized?”

Current System of Port Authorities Ensures Competition Between Major Terminals

Hall says there’s been an ongoing move towards the “corporatization” of ports since the 1970s, echoing port reform that has represented a “definitive shift to the economic right” in other countries like Australia, New Zealand and Britain.  

Canada’s port authorities retain considerable independence as the government can’t “direct or influence” their day-to-day actions. However, the government can amend the Canada Marine Act. The 2014 budget implementation omnibus bill, for instance, amended the legislation to permit the destruction of documents by ports and exempted federal land bought by port authorities from species protections and federal environmental assessments.

Hall says while imperfect, the current port authority system assures that competition between major terminals is “mostly fair,” ensuring the otherwise competing supply chain actors have a place where they have to collaborate.

“Why would we want to give up on that?” he asks. “And if all they mean by privatization is that they’re going to take these long-term leases and let Morgan Stanley turn them into tradable financial instruments in order to make the books look good in the short-term, well then shame on them. This has been tried around the world and it hasn’t been very helpful.”

Privatizing Canada’s Ports An ‘Invitation for More Conflict’ on #FossilFuel Exports https://t.co/75NoOyxW5J #bcpoli #coal #cdnpoli

— DeSmog Canada (@DeSmogCanada) December 2, 2016

Privatizing Would Mostly Benefit Major Terminals and National Railways, Not Public

Liquidating ownership would indeed generate short-term cash flow for the government.

But Hall says this move would mostly end up benefitting large terminal operators and the two national rail companies, CN and CP, which service the terminals: “They will look at that and say: ‘How fantastic is that? I’ve now got an opportunity to be if not the monopolist, one of the very small number of service providers without this very powerful authority agency looking over my shoulder.’”

Port authorities already have strained relationships with local hosting communities. Major conflicts have emerged over permitting authority in recent years; the Vancouver Fraser Port Authority is currently being sued by two organizations and two municipalities for allegedly approving a thermal coal export terminal without proper consultation.

The Canada Transportation Act Review noted that a move towards privatization would be "accompanied by legislation to protect the public and national interests." But according to Transport Canada, CPAs already “operate in the public interest.”

It’s a notion that people like Washbrook disagrees with given that he doesn’t see the export of polluting commodities as automatically more in the “public interest” than species protection or clean air.

“The notion that ‘well, we’re a trading country so it’s all good’ is wrong,” he says. “Canada’s interests are much broader. For this government to say ‘we’ve chosen trade over protecting the environment’ can’t be justified.”

Liberals Pursuing Privatization Agenda in Other Sectors

Washbrook suggests the federal government shouldn’t proceed with a very narrowly focused review by Morgan Stanley. Instead, it should opt for a broad-based consultation process that attempts to find out public opinion on the roles and governance of port authorities, and how local and regional interests should be balanced with national interests.

Hall echoes this sentiment, suggesting the government must ensure the inclusion of a wider range of actors, including local authorities and governments.

But it doesn’t look like the Liberals are interested in such discussions.

What was once heralded in the Liberal Party’s platform as an “largest new infrastructure investment in Canadian history” has turned out to be an attempt to attract billions in private investment from international firms, which Martin Luckas of the The Guardian dubbed a “giant corporate giveaway” and Tom Parkin of the Toronto Sun called a “bait-and-switch on infrastructure.”

In September, the government also hired the services of Credit Suisse Canada to examine the potential privatization of the country’s eight largest airports, which the CEO of the Vancouver Airport Authority predicted would lead to cutbacks in maintenance and cleaning, as well as increased crowding in airports. There are ongoing calls for the Liberals to consider privatizing Canada Post.

Yet Hall suggests that privatizing ports will only make that relationship more tense: “Think of the conflicts we’re about to have here over the pipelines,” he says. “You remove public oversight, you further push this in a private direction: it’s an invitation for more conflict.”

Washbrook agree: “People are frustrated. And I don’t think they’re going to be less frustrated if the government privatizes their ports.”

Image: Robert Banks Terminal via Port Vancouver

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