High court favours Clyde River
However, green light given for Line 9 pipeline
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 spokeswoman for the NEB said the agency is reviewing the court decision.
“We always want to make sure our hearing processes are fair, timely, accessible and transparent,” wrote Sarah Kiley in an email. “Our focus right now will be on how we can advance our processes towards meeting those objectives in the future.”
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 also undisputed that the seismic testing could harm mammals like whales and seals, damaging their hearing, affecting their migration routes and even killing them.
That assessment meant the Crown’s duty to consult was “at the highest end of the spectrum,” but the consultations “fell short in several respects,” the court found.
The NEB didn’t hold oral hearings, didn’t provide funding to help the Inuit communities participate in the review process and relied on scientific information from the companies that was delivered in a format the Inuit couldn’t access.
“To put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation,” the court wrote.
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.
A Chippewas spokesperson hasn’t yet been available to comment.
Natanine said he was sad the Chippewas of the Thames were not successful in stopping the Enbridge pipeline expansion in their territory, even going so far as to wear a T-shirt with the words “Chippewas Solidarity ” printed on the front.
The court issued a stern warning that the consultation process on Indigenous rights has to occur before projects are approved rather than after courts force it to happen.
“True reconciliation is rarely, if ever, achieved in courtrooms,” the judgement said.
Clyde River lawyer Nader Hasan said the companies could come back with another proposal given the court’s decision wasn’t about the merits of the project, but the lack of consultation.
He said he hopes this was a wake up call to the government to overhaul the NEB review process, including ensuring “free, fair and informed consent” are at the root of all decisions made that affect Indigenous communities.
“That will certainly make it much more difficult in the future for the NEB to green light projects like this one, projects that have the potential to prove catastrophic for the Inuit people,” he said.
“Yeah they can come back again and try again. We’ll be ready and we’ll be waiting.”