U.S. tribal nation seeks right to be consulted on Canadian projects

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A U.S. tribal nation is asking for a judicial review of a major Canadian West Coast port expansion, arguing that a recent Supreme Court decision in this country means it is owed the same rights of consultation as Indigenous groups here.

It is a novel, if unproven, attempt to extend the boundaries of Canadian law. If the Lummi Nation in Washington State succeeds, however, it will clear a path for others south of the border to seek financial compensation from industrial projects on Canadian soil.

“It could open the door to all manner of claims all across the Canada-U.S. boundary from nations that are on the American side of the border,” said Alan Hanna, a lawyer and scholar of Indigenous law at the University of Victoria. “That could get very complicated rather quickly.”

The administrative headquarters of the Lummi is situated on the shores of the Salish Sea, just south of the Canadian border. The Lummi, who call themselves the “salmon people,” were settled on a reservation by an 1855 treaty in which coastal nations in the Pacific Northwest relinquished their rights to millions of hectares of land from the 49th parallel to Mount Rainier.

Before the creation of the northern U.S. border, however, the Lummi’s fishing grounds included the marine waters “from the Fraser River south to the present environs of Seattle,” according to a landmark 1974 U.S. court decision. The nation points to historical records of trading fish with the Hudson’s Bay Company. Its website says the Lummi are “the original inhabitants of Washington’s northernmost coast and southern British Columbia.”

Now they are preparing to argue in court that their past use of those places entitles them to aboriginal rights in Canada.

The Lummi plan to file an application this week for judicial review of Roberts Bank Terminal 2, a major proposed Vancouver Fraser Port Authority container facility that received federal government approval in late April after a decade-long environmental-review process.

The project is designed to meet Canada’s future Pacific shipping needs with a new marine terminal that includes 108 hectares of artificial land and three new shipping berths. It would be built a few hundred metres from the U.S. border.

But the Lummi want to quash the approval decision in court, saying they had the right to be consulted about the project – and were not.

“What happens across the border impacts us as well,” Lummi Nation chair Tony Hillaire said in an interview.

Lummi members operate more than 500 registered fishing vessels, the largest indigenous fleet on the U.S. Pacific coast. Some of their catch are Fraser River salmon. Scientists and Indigenous groups have raised concern over damage to salmon and orca from the planned Roberts Bank terminal.

“We want to exert our sovereignty and uphold our treaty rights to fish in our usual and accustomed areas,” said Mr. Hillaire. A recent Supreme Court of Canada decision, he added, “confirmed that our rights were not extinguished by the border.”

In 2021, the court found that Richard Desautel, a member of the Colville Confederated Tribes in Washington State, had a constitutional right to hunt elk in British Columbia without a permit. Mr. Desautel could be considered among the “Aboriginal peoples of Canada,” the court held, since that term refers to “the modern‑day successors of Aboriginal societies that occupied Canadian territory at the time of European contact, and this may include Aboriginal groups that are now outside Canada.”

The Lummi supported Mr. Desautel in his case, and the nation’s legal counsel now argues that similar logic applies to its right to be consulted on the port project.

“What we’re seeking in this judicial review is not to halt the development. It’s to be given that seat at the table, to be consulted,” said John Gailus, a Victoria-based lawyer representing the nation. Win that seat and the Lummi could also argue for benefits, including financial compensation and opportunities for employment and contracting.

“If we’re successful, it obviously opens up a world of possibility in terms of consultation, accommodation, recognition of substantive rights,” Mr. Gailus said. Several other major B.C. projects are of interest to the Lummi, including the construction of a major new B.C. highway tunnel, the expansion of the Tilbury Island liquefied natural gas facility and the addition of a fourth berth to the Deltaport terminal.

The Lummi expect the Government of Canada to oppose their judicial review request.

The Vancouver Fraser Port Authority has already signed agreements with 26 Canadian Indigenous groups – it consulted with 46 – and agreed to create a $5.5-million Indigenous legacy benefit fund.

The Port Authority, in a statement, said it is working to advance the project “in a way that protects and enhances the environment, is reflective of Indigenous priorities, and considers the needs of local communities.”

In a statement, the Government of Canada said the Desautel decision indicates that the duty to consult Indigenous groups outside Canada “may differ.” But it did not respond directly to the Lummi argument. “It would be premature to make any comments on assertions at this time,” said Matthew Gutsch, a spokesperson with Indigenous Services Canada and Crown-Indigenous Relations and Northern Affairs.

The Canada-U.S. border severs numerous Indigenous communities across the continent, and has given rise to frequent disputes.

The Lummi case is different, since it seeks to expand the application of Canadian Indigenous rights to groups in the U.S.

The Desautel case “does give the Lummi an arguable position,” said Doug Rae, a Calgary-based barrister and solicitor who specializes in natural-resources and aboriginal law. The Supreme Court found that for those who possess an aboriginal right in Canada, “the political boundaries are irrelevant, which is the argument the Lummi are obviously going to make.”

But, he cautioned, meeting the Canadian eligibility test is tough.

“You have to show that you had a historical right at the time of first contact, and that in addition, you’ve been exercising that right continuously since then,” Mr. Rae said.

“So it’s a pretty large hurdle to overcome.”

Coastal areas are particularly difficult to include in Indigenous claims. Earlier this month, a British Columbia Supreme Court judge ruled against part of a claim filed by the Nuchatlaht First Nation, saying the current Canadian test for aboriginal title makes it difficult to establish marine claims. Travel by water, for example, does not imprint trails on the landscape.

The Lummi will also have to persuade a court that a decision in an elk-hunting case should apply to a demand for consultation on a major industrial project.

“Will the Supreme Court of Canada want to open that door that widely?” asked Prof. Hanna, the Indigenous law scholar.

It’s an important question for the Lummi to raise, he said. “But my gut feeling is the Supreme Court of Canada is going to be pretty cautious.”