Top court rules against Clyde River seis­mic tests, in favour of Line 9

The Hamilton Spectator - - CANADA & WORLD - MIA RABSON

OT­TAWA — The Inuit Ham­let of Clyde River won a nearly six-year bat­tle Wed­nes­day to stop seis­mic test­ing in the Arc­tic that could kill or maim the ma­rine mam­mals upon which they rely for food and jobs.

The Supreme Court unan­i­mously ruled the Na­tional En­ergy Board failed mis­er­ably at prop­erly con­sult­ing Inuit and didn’t ad­e­quately as­sess the im­pact on treaty and In­dige­nous rights of the pro­posed oil and gas ex­plo­ration project be­fore ap­prov­ing it in 2014.

The court quashed the NEB’s ap­proval, mean­ing the test­ing can­not pro­ceed.

In a sep­a­rate but re­lated de­ci­sion, the court up­held the ap­proval granted to En­bridge to re­verse the flow and in­crease ca­pac­ity of its Line 9 pipe­line be­tween On­tario and Que­bec.

In that case, also a unan­i­mous de­ci­sion, the court found the NEB prop­erly con­sulted the Chippe­was of the Thames First Na­tion in south­west­ern On­tario.

In both cases, the court up­held that the NEB is ca­pa­ble and al­lowed to ful­fil the Crown’s duty to con­sult In­dige­nous groups about de­vel­op­ment projects in their tra­di­tional ter­ri­to­ries, as long as that con­sul­ta­tion is ro­bust.

“What an ex­cit­ing day for us,” said Jerry Nata­nine, the for­mer mayor of Clyde River. “We’ve been say­ing jus­tice is on our side be­cause we’re fight­ing for our life, we’re fight­ing for our way of life.”

Nata­nine clutched an ea­gle feather as he spoke in soft tones of the years-long bat­tle that pit­ted his tiny, re­mote ham­let of about 1,100 peo­ple against three Nor­we­gian com­pa­nies seek­ing to fire air guns into the wa­ters of Baf­fin Bay and Davis Straight look­ing for oil.

“We are not to­tally against de­vel­op­ment, but it has to be done right,” Nata­nine said. “You know whales don’t have to die, seals don’t have to die off, or plank­ton. There’s a bet­ter way to do these things.”

A lawyer for the com­pa­nies said none were in a po­si­tion to make a state­ment Wed­nes­day.

The dif­fer­ence be­tween the two de­ci­sions largely stemmed from the fact that in the Clyde River case the NEB looked at the en­vi­ron­men­tal im­pacts of the test­ing, but didn’t specif­i­cally look at or ad­dress the im­pact on treaty rights.

The court said the Inuit had treaty rights in the re­gion, in­clud­ing the right to har­vest ma­rine mam­mals, and it was undis­puted that the seis­mic test­ing could harm mam­mals like whales and seals, dam­ag­ing their hear­ing, af­fect­ing their mi­gra­tion routes and even killing them.

In the Chippe­was case, the court found the NEB con­sul­ta­tion process was proper, in­cluded ad­e­quate op­por­tu­nity and fund­ing for the Chippe­was to par­tic­i­pate, and specif­i­cally ad­dressed the im­pact on treaty rights.

The NEB found the project posed some risk to the Chippe­was ter­ri­tory, but those risks could be mit­i­gated. As well, En­bridge didn’t need any new land rights, most work would take place in ex­ist­ing fa­cil­i­ties and use its ex­ist­ing right of way.

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