Lummi Nation is challenging a federal ruling in Canada that Ottawa met its constitutional obligations for consultation for a major port expansion in British Columbia.
Last year, Lummi Nation challenged the federal approval of the Roberts Bank Terminal expansion, which seeks to grow its capacity by a third. While Lummi asserted that this was a “no consultation” case, the court found in December that Canada’s duty to consult had been fulfilled, and consultation was “reasonable, meaningful and honorable.”
“In order for Lummi to get in the door, to get a seat at the table, they had to put forward what we call a strong prima facie case that they had rights in Canada,” said John Gailus, founder of Cascadia Legal LLP in Victoria who is representing Lummi Nation, at the World Issues Forum at Western Washington University last month. “When you’re determining the consultation, basically we had to fight everything in that case. Canada’s lawyers were saying there is no duty of consultation.”
This meant proving that Lummi Nation are Aboriginal peoples of Canada. While Gailus said Lummi Nation has a strong claim and that the impacts of terminal expansion are massive, what “happens oftentimes in court cases, the judge will come to a certain conclusion and then try to reverse engineer later.”
Lummi’s “consultation” occurred during the 10-year environmental assessment process for the Roberts Bank project, where the tribe provided evidence. Lummi Nation was not offered funding or other opportunities granted to Indigenous Nations in Canada — something the appeal hopes to achieve — and alleged that the consultation focused only on transboundary impacts of the project.
The court held that Lummi was owed a duty to consult, but that Canada had fulfilled that duty.
“It’s kind of like a three-legged stool,” Gailus said. “We have two legs, but we need all three to be successful. In the more recent correspondence, (Canada said) ‘we’re not sure. We’re going to continue talking to you, but we’re not formally consulting.’”
Traditional rights in Canada
According to Jay Julius, former chair of Lummi Nation, the U.S.-Canada border does not apply to Lummi’s traditional territory.
“There’s one thing in common here that makes Lummi, Saanich, T’souk-e, Songhees, Semiahmoo very distinct from everyone else in the United States, and that’s language,” he said.
According to Julius, 14 Lummi chiefs signed the Point Elliot Treaty in 1855, one of the first legal documents the United States entered with local tribes.
“The 14 Lummi chiefs, who were they?” Julius asked. “Did they come from this reservation and paddle to Mukilteo in 1855 on that January day? No. They represented different places.”
It was then that authorities moved the scattered representatives of the region to today’s Lummi Nation.
“After the legal document that was entered into, we got placed on a 12,000-acre federal prison,” Julius said, “And we had to evacuate the places we were autochthonous from, we grew from, we had been since the beginning of time.”
In the early 18th century, a man from the Swallah tribe named sχəlɔqst led a battle against a neighboring group called the Skalakhan — a Nooksack-speaking tribe at the mouth of the Nooksack River — in revenge for the murder of his brother. After this battle, the surviving land and people were absorbed into the Lhaq’temish or Lummi tribe.
“Prior to that, you would see us here, up there, over here, which you now know as Canada,” Julius said. “Not a river people, but reefnet technology ties and tells a lot of that story. Our creation story goes to North San Juan by Roche Harbor. And our first man was blown into existence by the Changer. And that’s our creation story, creating the first man named swi’tən.”
The 1974 Boldt Decision established not just domestic and substance rights but commercial rights, too, up to the 49th parallel. However, the decision addresses the usual and accustomed fishing places at the time of the treaty, which included the marine areas of Northern Puget Sound from the Fraser River, south to what is now Seattle. It references Canada twice — Boundary Bay and the Fraser River — and the geography of the delta has changed radically with diking.
“The border is irrelevant,” Gailus said. “The reefnet sites may well be in the United States now.”
Legal precedent
Section 35 of the 1982 Constitution Act recognizes and affirms the existing Aboriginal and treaty rights of the Aboriginal peoples of Canada.
Compared to the states, Canada has few treaties settled, Gailus said. With industrial developments like Roberts Bank, sometimes Canada makes decisions, sometimes British Columbia makes decisions and sometimes they both make decisions. Before approving a project, officials must consult with the First Nations that may be affected and come to some sort of accommodation.
However, not everyone gets the same consultation, Gailus said. Some tribes have established rights and others must prove their rights in court.
Canada had no obligation to consult U.S.-based tribes until the 2021 Desautel decision. Rick Desautel, a member of the Colville tribe in Eastern Washington and a descendent of the Sinixt First Nation, shot a cow elk in British Columbia and then turned himself in to the conservation officer. He was charged with hunting without a license because he wasn’t a citizen.
However, Desautel challenged the charge, claiming he had an Aboriginal right to hunt which has never been surrendered by treaty. On its third appeal, a seven-member majority of the Supreme Court of Canada upheld that because the Sinixt had been forced out of Canada, to not include them today as an Aboriginal Peoples of Canada would risk “perpetuating the historical injustice suffered by Aboriginal peoples at the hands of colonizers.”
“The assumption was that that border was a hard line, that effectively operated to extinguish rights, the substantive rights and the procedural rights,” Gailus said, “and the Supreme Court of Canada said, ‘No. That’s not the case.’”
What happens next
Lummi Nation’s legal team will file written arguments in the next three months and request a hearing. A decision is tentatively expected around September.
“A treaty isn’t an Indian thing,” Julius said. “It’s a newcomer’s thing. It’s your treaty. It’s not a damn Indian thing that gets in the way of progress and development. It’s a promise between two sovereigns that created the beginning of this place that we all call home.”
— By Sam Fletcher
Also read in Salish Current:
• “Lummi reclaims traditional name for TiLeqw-iLhch at Haida Point,” July 11, 2025
• “Penalties undetermined for disturbed cultural site at Rosario,” July 9, 2025
• “Additional acreage next to Madrona Point to be returned to Lummi Nation ,” April 2, 2024
• “Commentary: Roberts Bank Terminal 2 project is a looming environmental disaster,” Nov. 20, 2023
• “Commentary: Understanding the importance of the Point Elliott Treaty,” Jan. 28, 2021