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