A Native American tribe in Washington State is taking the B.C. government to court for prohibiting the Nation from participating in consultations for multiple infrastructure projects.
Lummi Nation, which is based in western Washington, filed the petition for a judicial review in B.C. Supreme Court in Victoria on Sept. 29. The Lieutenant Governor and the Environmental Assessment Office are listed as respondents.
None of the claims have been proven in court. Responses to the civil claim must be filed within 21 days if the respondents live in Canada or within 35 days if they live in the United States.
The Nation is looking to have the court declare that it is a participating Indigenous Nation under the Environmental Assessment Act or, alternatively, that Lummi was excluded from participating Indigenous Nation status regarding two projects.
Those projects are the Pattullo Bridge replacement, connecting Surrey and New Westminster, and the George Massey Tunnel replacement along Highway 99 in the Lower Mainland.
Lummi Nation is asking the provincial government to say it acted in bad faith, as well that it has a duty to consult with the Nation.
The lawsuit claims the Crown was aware of Lummi’s claims as early as 2014 through its involvement in the Trans Mountain Expansion Project and Roberts Bank Terminal 2 Project. It adds the Crown was formally put on notice on Oct. 29, 2021 through a request from Lummi Nation.
Lummi Nation, according to the court documents, presented to the provincial government that it had connections to the land prior to European contact.
Lummi is a Coast Salish Nation with traditional territory centered around the Salish Sea. The Nation’s traditional territory includes numerous villages, harvesting, cultural and spiritual sites on both sides of the border, including around the San Juan Islands, the Gulf Islands, southern Vancouver Island, mainland B.C. and Washington State.
The court documents add Lummi asserts it is an “Aboriginal people(s) of Canada, with section 35 rights in B.C., meaning Lummi is an Aboriginal society that occupied now-Canadian territory at the time of European contact and “is entitled to be consulted on Crown decisions that may adversely impact their asserted rights.”
In April 2021, the Supreme Court of Canada issued a decision that “aboriginal peoples of Canada,” according to section 35 of the Constitution, means the modern-day successors of Aboriginal societies that occupied Canadian territory at the time of contact. The court confirmed that U.S.-based tribes “may have both substantive rights,” such as hunting, fishing and Aboriginal title, and procedural rights to consultation.
The court put the onus on U.S.-based tribes to put the notice on Crown for their claims and then Crown must make the decision on whether or not to consult.
Lummi Nation participated in that court case as an intervenor. The B.C. government was an appellant.
This is the second judicial review Lummi has brought forward that relies on the 2021 Supreme Court of Canada decision. The first is regarding the Roberts Bank Terminal 2 Project, which was heard by the court in June 2024. The Nation is still awaiting that decision.