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Arctic Town Heads to Canada’s Supreme Court to Battle Fuel Exploration

Residents of Clyde River, Nunavut, hope to quash a government permit for underwater oil and gas exploration with claims that they weren’t fairly consulted on a plan to conduct seismic tests in the Canadian Arctic.

Written by Jillian Kestler-D’Amours Published on Read time Approx. 5 minutes
Protesters march toward the Supreme Court of Canada in Ottawa on November 30, 2016.Jillian Kestler-D'Amours

OTTAWA, Ontario – An Inuit hamlet in Canada’s Arctic is hoping the country’s highest court will quash a permit for underwater oil and gas exploration off the coast of Baffin Island.

On November 30, after a two-year legal battle, the Supreme Court of Canada heard the final legal challenge from the residents of Clyde River, located on the east coast of Baffin Island and home to about a thousand people.

Clyde River residents rely on fishing and hunting for food and income. They fear that the seismic surveys, which involve sending sonic waves toward the ocean floor to detect underground oil and gas reserves, in Baffin Bay and Davis Strait will harm local marine mammals, including seals and narwhals, and disrupt migratory routes.

Jerry Natanine, the former mayor of Clyde River who initiated the lawsuit, said the community is concerned the project will “have a devastating effect” on their hunting culture and traditional way of life.

“If we should win, the effect it’s going to have and the power it’s going to give to the citizens of the country, we cannot really understand how big that is,” Natanine told Arctic Deeply a few days before the Supreme Court hearing.

Legally, Clyde River’s case comes down to a principle known as the duty to consult.

If successful, the Supreme Court’s decision, expected in a few months, could overturn some National Energy Board of Canada (NEB) approvals. It could also change the way Canada – and its representatives ­– consult with Indigenous peoples on resource development projects that could infringe on their rights.

Aboriginal and treaty rights to hunt, fish and trap wildlife on traditional territory are laid out in section 35 of the Canadian constitution.

The Crown has a legal duty to consult and accommodate when aboriginal title or rights have been asserted and may be adversely affected by a government activity, such as mining, forestry and oil and gas extraction.

But the courts have interpreted the duty to consult in a variety of ways.

Protesters rally in front of the Supreme Court of Canada in Ottawa for the hearing in the Clyde River case. (Jillian Kestler-D'Amours)

Protesters rally in front of the Supreme Court of Canada in Ottawa for the hearing in the Clyde River case. (Jillian Kestler-D’Amours)

A 2004 Supreme Court case specified that the duty to consult lies with the so-called “honor of the Crown,” the ethical underpinnings of the state’s commitments to its citizens. While some procedures can be delegated to third-parties, this obligation cannot. The case also described consultation as happening along a spectrum – from “deep consultation” to “lower levels of consultation” – depending on which aboriginal rights are at stake.

According to Janna Promislow, associate professor in the Faculty of Law at Thompson Rivers University in British Columbia, legal scholars disagree on whether the Crown must be directly involved in the consultation process and whether third-party regulators, like the NEB, can carry out the duty.

The NEB is a federal regulator that considers requests from companies to conduct oil and gas exploration activities in the Arctic and build pipelines and other energy projects.

After consulting with the community of Clyde River, the NEB granted a five-year license in 2014 to a consortium of companies to conduct seismic testing in Baffin Bay and Davis Strait during the open-water season.

The Clyde River case rests on whether a third party, in this case the NEB, can carry out the consultation in the place of the federal government.

If the Supreme Court finds that it cannot, regulatory changes will be necessary, Promislow said.

“I think our whole regulatory system does need reform to make sense of the duty to consult. We need more joint management. We need more land-use planning and things with Indigenous peoples as decision-makers,” she said.

But if the court rules the NEB can carry out the duty, she said the regulator’s role would likely be clarified “to make sure that Indigenous concerns are addressed as part of our regulatory system over lands and resources.”

NEB spokesperson Steven Rowe told Arctic Deeply the NEB does not comment on legal cases that are before the courts.

On its website, the NEB states that its decisions take “aboriginal concerns into account.” Companies must provide information about consultations and details on a project’s potential impact on Indigenous rights. Indigenous groups may also submit concerns about proposed projects, it also says.

In the Clyde River case, the NEB organized town-hall-style meetings from April 29 to May 2, 2013, in Pond Inlet, Clyde River, Qikiqtarjuaq and Iqaluit.

But Natanine said that the residents’ questions about the impact of seismic blasts on marine life went unanswered during these meetings. Inuit groups asked for a delay in the decision so they could conduct an environmental assessment, but the NEB granted the license despite the request.

“We were treated unfairly. The government didn’t hear our concerns,” said Natanine.

In an emailed statement, Indigenous and Northern Affairs Canada told Arctic Deeply the government is reviewing the NEB’s governance structure, role and mandate, “with particular focus on enhancing the participation of the public and Indigenous peoples in regulatory reviews.”

Nader Hasan, the lawyer for Clyde River, said that what’s at stake – the potential loss of the Inuit right to fish and harvest and sustain their livelihoods – puts the onus on the Crown to deliver more meaningful consultation to the community.

“We’re dealing with what the courts have called deep consultation, where a higher level of fairness is owed to the Indigenous peoples, [and] where access to an open public forum process is not enough,” Hasan told Arctic Deeply.

The NEB has never authorized a license to drill for oil in the Davis Strait or Baffin Bay areas and there are currently no active licenses for offshore drilling in the Canadian Arctic.

But oil and gas companies have expressed interest in exploring the resource-rich region. The Arctic may hold 30 percent of the world’s undiscovered natural gas reserves and 13 percent of its uncovered oil reserves, according to the U.S. Geological Survey.

Hasan said he hoped the Supreme Court’s ruling will provide greater certainty over what “deep consultation” means, and tell Indigenous peoples what rights they’re entitled to when future projects are proposed.

“Knowing what you’re entitled to will actually give Indigenous groups and leaders the tools with which to challenge future projects and future encroachments on their traditional territory and land,” he said.

“No matter how the Supreme Court rules, it will provide guidance going forward for industry, for Indigenous peoples, [and] for governments on the rules of the game.”

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