Buoyed by a recent favourable court decision, the Vancouver Fraser Port Authority (VFPA) appears increasingly optimistic about the prospects for its controversial Terminal 2 container cargo expansion project at Roberts Bank.
The July 26 Federal Court of Canada decision found the port authority not guilty of improper bias against a rival Roberts Bank expansion proposal. Port officials have called it a major victory, but local opposition to the multibillion-dollar Terminal 2 proposal remains steadfast.
For VFPA president and CEO Robin Silvester, Terminal 2’s application, which has been inching through environmental and other approval processes for more than a decade, has addressed all the relevant concerns ranging from environmental impact and effects on quality of life to cost and legal jurisdiction.
“The project has gone through the highest level of environmental review in Canada: a federally designated review,” Silvester said. “It’s had a public hearing to hear all the perspectives, all the factual information that we put forward about environmental impacts and the ways we would mitigate all the concerns of stakeholders. The federal minister had some further questions, and we’ve responded in full. Everyone has had a chance to comment on those responses.
“Now, the project needs to go forward to government for a decision. We are very firmly of the view that this project can be delivered without adverse environmental effects.”
Roger Emsley, executive director of the Against Port Expansion Community Group, has been one of the most vocal Terminal 2 opponents, which also include the municipal governments of Richmond and Delta.
He noted that one of the key issues regarding Terminal 2’s environmental impact stems from the creation of a large landfill island that is estimated to affect 177 hectares of the Fraser River estuary – a key area for migrating birds and marine life and their survival.
In March 2021, the VFPA said it was developing a plan to replace the existing biofilm in the Fraser River estuary responsible for feeding and supporting migrating birds. In the updated “biofilm manual” plan, port authority officials said the VFPA is now committed to creating 86 hectares of habitat to replace affected areas – 22 hectares more than the habitat that would be lost.
Emsley, however, noted that scientists from within Environment and Climate Change Canada and the federal agency both filed documents with Ottawa stating that the biofilm cannot be adequately replaced through artificial means. Neither documents have been released by the federal government and were excluded from the findings of an Impact Assessment Agency of Canada panel review of the project in 2020.
Taking aim at the credibility of the VFPA’s scientific claims to biofilm creation, Emsley argued that “science, facts and evidence demonstrate it is not possible on the scale necessary to replace what will be lost.”
The need for Terminal 2 also continues to be controversial.
GCT Canada, the operator of the GCT Deltaport container terminal at Roberts Bank, has long argued that its proposal for a smaller, less expensive expansion to Deltaport (DP4) is a “right-sized” solution compared with the massive Terminal 2 project, construction of which is currently estimated to cost more the $3 billion.
The VFPA, however, wants a new container terminal at Roberts Bank that is not operated by GCT to provide more marketplace choice for container shipping lines and prevent the port’s current container terminal operators from having a monopoly over vessel-docking fees and prices.
Silvester confirmed that having a different operator at Roberts Bank is a key part of the equation – something that GCT officials decried as the port authority unfairly favouring its project over GCT’s.
GCT officials said they are mulling an appeal of the federal court decision.
Marko Dekovic, GCT Canada’s vice-president of public affairs, pointed out that Judge George Pamel’s decision noted the VFPA – in its decision to defer processing DP4 until after dealing with Terminal 2 – “had breached its duty of procedural fairness to GCT in not having undertaken the tasks set out in the VFPA’s permit review process.”
But Pamel also noted in his decision that the VFPA-GCT case was “not meant to be, and [was] not argued before me as, a trial on the governance model and the quality of governance of port authorities under the [Canada Marine Act], and of the VFPA in particular.
“I am not persuaded by GCT that there is any evidence that the VFPA executives were actually biased against the DP4 project or that what GCT claims to be the indicia of such bias is in any way evidence of a reasonable apprehension of bias on the part of the VFPA executives.”
Emsley said the VFPA’s messaging – that the decision is a decisive victory for the port – isn’t appropriate.
“Although the judge found no case of bias, his characterization of VFPA is recognition indeed of the VFPA’s flaws in handling its regulatory duties in a fair manner,” Emsley said. “This is not the right and proper conduct for a regulator.”
Silvester, however, noted that the port authority has both regulator and business-proponent duties when it comes to the port’s future plans, and the preference for Terminal 2 is within the VFPA’s mission statement to facilitate Canada’s trade with the global market.
“[The decision] confirmed we have the right and responsibility to pursue the project we believe to be in Canada’s best interests,” Silvester said, describing the result as “completely victorious” for the VFPA.
He also doubled down on all of VFPA’s Terminal 2 rationale:
•the port’s anticipated container capacity crunch looming in the 2030s;
•Terminal 2 being the only project that could meet that capacity demand in time;
•the pricing a competing terminal operator could offer to shipping lines; and
•what the VFPA believes has been a thorough engagement and amelioration of concerns from local opposition groups.
“This [application process for Terminal 2] is very near the finish line,” he added. “The Impact Assessment Agency is compiling all the information, which we are hoping will go forward for government decision later this year. It’s a critical project, and the court highlighted that we have the responsibility to pursue what we believe to be in the best interest of Canada. We are clear in saying that I believe that project is Terminal 2.
“There is no other project anywhere near the finish line.… Terminal 2 is a project we developed in the public interest rather than in the interest of a single shareholder.”