Community groups opposed to the U.S. thermal coal port facility proposed for Fraser Surrey Docks have lost a four-year-long legal battle challenging the Vancouver Fraser Port Authority’s approval of the project.
The question is, what’s next?
Fraser Surrey Docks in 2012 applied for a permit to build and operate a coal transfer facility in Surrey along the river, proposing to bring coal in from the U.S. by rail and load it onto barges bound for Texada Island, from where ships would take it to Asia. A review was held, with community groups, First Nations and civic governments, during which process the applicants in the federal court battle expressed concern over impacts on the environment.
Ecojustice lawyers argued in May 2017, on behalf of Communities and Coal Society, Voters Taking Action on Climate Change and individual citizens Christine Dujmovich and Paula Williams, that the Port didn’t have the legal power to approve the project and that it was “biased in its decision-making.”
Coal project opponents
Christine Dujmovich and Paula Williams. (Photo: Now-Leader).
The case was heard in Vancouver on May 18, 2017, and Justice James O’Reilly of the Federal Court in Ottawa released his judgment and reasons on Jan. 15. Respondents were the Attorney General of Canada, Vancouver Fraser Port Authority and Fraser Surrey Docks Limited Partnership. The cities of Surrey and New Westminster had intervener status.
“I can find no basis for overturning the Port Authority’s decisions — they were made fairly and lawfully, and untainted by a reasonable apprehension of bias,” O’Reilly said in his judgment and reasons. “I must, therefore, dismiss this application for judicial review.”
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Jeff Scott, president and CEO of Fraser Surrey Docks, told the Now-Leader on Monday that the project is still in play.
“We still have our permit for the coal facility. We currently do not have a construction date for that facility but we’re still discussing opportunities with potential customers,” he said.
Meanwhile, Fraser Surrey Docks could also be home to two grain and potash terminals
Fraser Grain Terminal Ltd. has submitted an application to the Port of Vancouver to build a grain terminal on Elevator Road that would handle four million tonnes of grain per year, at the site of a terminal that currently deals with a half-million tonnes per year. An estimated 309 trains would deliver the grain by rail through Surrey, along the CN rail mainline, and most of it would be loaded directly onto 62 ocean-going ships each year. Roughly 600,000 tonnes of grain would be loaded into containers and put on ships or trucked to Deltaport and other terminals.
“Those are two independent projects,” Scott said of the grain and potash terminals in relation to the coal transfer facility, adding there is room for both.
Jeff Scott
As for the federal court’s ruling, he said, “We are pleased with the response and the outcome and we’re just waiting at the moment to determine next steps.”
In her affidavit to the court Dujmovich, residing roughly a kilometre from the docks on land her grandfather bought in 1920, expressed concern the coal transfer facility would cause detriment to people’s health and the environment primarily through coal dust and diesel exhaust released along the route, not to mention create noise and reduce property values. Williams, who co-founded the Communities and Coal Society, voiced concern about the potential for mudslides because of increased rail traffic. The group also launched a petition in 2013 seeking a comprehensive health impact assessment related to the project that resulted in 13,000 signatures.
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O’Reilly noted in his judgment that in 2014 the port authority concluded in an environmental review decision statement that the project would not likely cause significant adverse effects,
Ecojustice lawyer Karen Campbell said the court’s decision is being reviewed toward the possibility of an appeal. She wrote in a prepared statement, “We are deeply disappointed by the court’s decision to dismiss our clients’ case against the Vancouver Port Authority’s approval of the Fraser Surrey Docks coal project.
“While this is not the outcome we, or our clients had hoped for, we believe this case shed light on important issues — it increased public scrutiny of how the Port conducts its business and reinforced the importance of stopping the export of dirty U.S. thermal coal through Canada.”
Campbell stated the “fact remains” that federally appointed authorities such as the Port “need to be held accountable for the decisions they make and the impacts their project approvals have on the regions in which they operate — otherwise it’s communities like the ones our clients live in that will suffer.”
“We are currently reviewing the court’s decision with our clients, including whether to appeal the judgment,” Campbell stated.
Williams, a resident of Crescent Beach, told the Now-Leader it was “really hard having to notify all the supporters,” close to 300, about losing the court fight. “Having to tell everyone who worked so hard that we didn’t win.”
“What I’ve learnt over the past four years is it doesn’t really matter what the courts say because having the courage to stand up for what you believe is really a win all on its own,” Williams said. “And I think that’s what I found — you know, it was worth it because we felt so strongly about, and still feel strongly about this project.
“It brought a lot of communities together.”
She said the “appetite” for an appeal has yet to be explored.
“Depending on what they (the lawyers) come back with and what they advise, we’ll have to sit down as a group and make a decision. I’ve been working on this since May of 2013 as far as like challenging it in the public realm, so it’s been a lot of years. So we’ll just kind of see what the lawyers come back with and we’ll take it from there. Obviously, we want to make a wise decision — we don’t want to waste anybody’s time, right.”
“If we do file an appeal,” Williams added, “I think it has to happen within 30 days of receiving the judgment, so that decision would obviously have to be made rather soon.”
She’d also like to see where the City of Surrey lands on filing an appeal, considering it had intervenor status in the court challenge. “It would be interesting to see what their ideas are on this, if they’ve be interested in moving forward with an appeal. But I do know that they do share our concern, obviously, that’s why they became intervenor, they share the same concerns over the impact that this would have on residents.”
Surrey city councillor Bruce Hayne said the city’s lawyers will look carefully at the ruling to determine Surrey’s next step,”if there is a next step.”
“I think our legal department would have to look at the ruling fairly closely and decide what the chances and what the upside and the downside of following up on an appeal would be,” Hayne said.
Bruce Hayne
“We absolutely wanted to be at the table when they went through the process because otherwise we had no ability to affect the outcome. We were concerned with how they were going to be cleaning out the coal cars after delivery and so-on because we wanted to be sure that effluent wasn’t making its way to the Fraser River.
“But if it’s not going to make its way to the Fraser River then it has to come through our sewer system, and what effect will that have and so-on. Aside from the general concerns that certainly the community had, and still does have, with increased frequency of long trains coming through our community, that’s sort of the one issue, and they made it clear when they were doing the review that they were only looking at the environmental impact at the port facility and not looking necessarily at the environmental impacts along the route, which is a bit of a narrow context to take but that’s one that was taken,” Hayne said. “We wanted to be sure then from an environmental perspective that it was going to be managed in a responsible way.”
Moreover, Hayne wonders about the economic viability of a coal transfer facility at the docks at the price per tonnage that thermal coal is right now.
“That’s a question that I can’t answer yet,” he said. But I do know that there was certainly a question of economic viability to the whole project depending on what the price per tonne of coal sits at.”
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