Communities and Coal Society et al. v Vancouver Fraser Port Authority et al.

Beginning on August 21, 2014, the Vancouver Fraser Port Authority issued a permit approving Fraser Surrey Docks LP’s (FSD) coal facility proposal. Specifically, permission was granted to construct and operate a 4 million tonne direct transfer coal facility in Surrey, British Columbia. The Port operates under the authority of the Canada Marine Act and the Canadian Environmental Assessment Act, 2021 (CEAA), which requires operators to consider and avoid significant adverse environmental effects, ensure public safety and environmental protection, and respond to local priorities. On October 30, 2014, local residents–represented by Ecojustice–Christine Dujmovich and Paula Williams, and environmental groups Voters Taking Action on Climate Change and Communities and Coal, filed an application for judicial review in the Federal Court challenging the Port Authority’s approval of the project. The application specifically raised concerns about the procedural fairness of the decision and the failure to consider the climate impacts of the burning coal as it reaches Asia. The legal grounds for the challenge, per the applicants, included: 1. The Port’s Board of Directors lacks the authority to delegate its powers to make the mandatory determination under s 67(a) of CEAA of whether the project could result in significant adverse environmental effects to the Port’s Chief Executive Officer and President 2. If it is determined that delegating the CEAA Determination and the decision to issue the project permit was within the Board’s authority, the process of delegation was done improperly. 3. If the Board did have the authority and properly delegated said authority, the CEO failed to make the CEAA Determination. 4. The Port’s approval gives rise to reasonable apprehension of bias, considering the financial incentives for decision-makers and key officials. 5. The Port’s amendment to the project permit cannot cure the underlying defects in the project approval. In January 2018, the Federal Court dismissed the legal challenge. Midway through Ecojustice’s appeal of this decision, the Port Authority canceled the permit for the project.