Federal court rejects Clyde River bid to block seismic tests

Clyde River Mayor Jerry Natanine talks to supporters April 20 outside the Federal Court of Canada in Toronto, where his hamlet’s judicial review application was being heard. Natanine and residents of his Baffin community wanted the court to reverse a National Energy Board decision to permit seismic testing in Baffin Bay and Davis Strait, saying they were not properly consulted and that they fear for the health and safety of marine wildlife in the region. On Aug. 17, the Federal Court of Appeal ruled against Clyde River’s bid. (PHOTO BY SARAH ROGERS)

(Updated Aug. 18, 4 p.m.)

The Federal Court of Appeal has rejected a bid by Clyde River Mayor Jerry Natanine, the Hamlet of Clyde River and the Nammautaq Hunters and Trappers Organization to block a controversial seismic testing project off the east coast of Baffin Island.

The appeal court reported the decision in a 46-page judgment released Aug. 17

And in that judgment, the three-member appeal court panel found the National Energy Board and the project proponent fulfilled the Crown’s duty to consult the Inuit of Clyde River and did not breach Section 35 of the Constitution.

“I am satisfied that to date the board’s [the NEB] process afforded meaningful consultation sufficient that the Crown may rely upon it to fulfill its duty to consult,” Justice Eleanor R. Dawson said in the judgment.

“The environmental assessment and the terms and conditions imposed upon the GOA [Geophysical Operations Authorization] provide a reasonable degree of accommodation of the applicant’s concerns about potential impacts caused by the project upon their Section 35 harvesting rights,” Dawson wrote.

The other two judges on the appeal panel, Justice Marc Nadon and Justice Richard Boivin, agreed, making it a unanimous decision.

Natanine and the two Clyde River groups had launched an application for judicial review after the National Energy Board, on June 26, 2014, issued a permit called a Geophysical Operations Authorization, or “GOA” to the project proponent.

The proponent, a consortium of three Norwegian companies known as “MKI” for short, planned a five-year seismic testing scheme in Davis Strait and Baffin Bay.

Phone lines are patchy in Clyde River and so it was difficult to reach Natanine for a reaction but in a news release issued by Greenpeace at 4 p.m. Aug. 18, Natanine said the ruling is a slap in the face to aboriginal rights in Canada.

“Inuit depend on our animals for our food, livelihoods and our culture,” Natanine said in the news release. “Scientists are telling us that seismic blasting can harm animals and disrupt their migration patterns. Inuit’s own experiences with seismic blasting in the past tell us the same thing. This ruling is a big blow to Inuit rights and Inuit culture, but we will continue to fight until justice is served.

The project was supposed to start in the summer of 2015, but MKI has postponed it for at least one year.

That scheme dates to 2011, when MKI filed its application with the NEB and began its attempts to consult the people of Clyde River and other affected Baffin communities.

MKI’s plan, which would involve dragging an air-gun array behind a ship that emits loud explosive blasts into the ocean, met with immediate opposition from communities such as Clyde River and Pond Inlet.

Most people in North Baffin condemned the proposal, saying it opens the door to future oil and gas drilling off the east coast of Baffin Island and threatens populations of bowhead whales, narwhal, belugas, orcas, polar bears, walrus, seals and other sea mammals.

People protested in the streets of Clyde River and accused the proponent, and the NEB, of inadequate consultation.

In 2014, the Hamlet of Clyde River made a pact with Greenpeace to oppose the project together with Greenpeace kicking in some money to help pay for Clyde River’s judicial review.

In their application to the federal court of appeal, the Clyde River groups said the Crown did “virtually nothing” to fulfill its duty to consult.

In support of that, they said in court that the MKI did not supply enough information in Inuktitut, provided written information in large files that were difficult to download on the internet and did not incorporate Inuit Qaujimajatuqangit into the design of the project.

They also said that the project should not have been approved until after Aboriginal Affairs and Northern Development Canada had completed a strategic environmental assessment of Baffin Bay and Davis Strait.

But in their judgment, the appeal court rejected nearly all of Clyde River’s arguments on the consultation issue, in a lengthy analysis that stretched over 20 pages and formed the heart of their decision.

They described, and accepted as fact, a list of consultation activities that MKI and the NEB engaged in.

And they also recited commitments that MKI made during the consultation process, which included the hiring of a Nova Scotia-based firm called NEXUS Coastal to help with their consultation work.

That included:

• a promise to hire two Inuit observers, one on the seismic vessel and one on a support vessel;

• the installation of an acoustic monitor to warn them of the presence of nearby marine mammals;

• a commitment to do an IQ study with Inuit communities;

• a commitment to hire liaison officers in four communities;

• a commitment to work with the Baffin Fisheries Coalition and the Arctic Fisheries Alliance to avoid damage to fish stocks; and

• a commitment to share a final observation report with Inuit communities.

They also pointed out that the Hamlet of Clyde River and the HTO refused to participate in an IQ study that NEXUS Coastal did on behalf of MKI.

“It was not helpful, or consistent with reciprocal, good faith consultation, that both the Clyde River Hamlet Council and the HTO-Clyde River refused to participate in the IQ study…,” the judgment said.

And they said MKI made certain changes to the project in response to concerns made by Clyde River, such as shortening some seismic survey lines that came close to shore or in the border between sea ice and the ocean.

In addition to finding that the Crown did adequate consultation, the appeal court also found:

• the NEB did not err when it issued the GOA;

• the NEB was reasonable in concluding the project is not likely to produce adverse environmental impacts;

• the NEB did consider aboriginal rights set out in Section 35; and

• the Crown was not obliged to consult the Nunavut Wildlife Management Board – because the issuance of the GOA was not a wildlife management matter.

Federal Court Clyde River Ruling