Lawyer: Nunavut anti-seismic case comes down to the right to eat
Lawyers wrangle over consultation and whether individual Inuit possess right to be consulted
TORONTO — The lawyer representing a group of Inuit in their effort to halt seismic testing off the east coast of Baffin Island boiled the issue down to one sentence.
“This case is about the right to eat,” lawyer Nader Hasan said April 20 on behalf of his clients, the Hamlet of Clyde River, Mayor Jerry Natanine and the local Nammautaq Hunters and Trappers Organization.
Hasan presented his arguments before the Federal Court of Appeal in Toronto, as part of an application to reverse a 2014 National Energy Board decision to allow seismic testing in Baffin Bay and Davis Strait.
The underwater airguns used to survey the seabed would be harmful to the marine wildlife Inuit harvest, opponents of seismic testing have argued.
“This is not just about harvesting for sport or a pass-time. This is a sustenance hunt,” Hasan told a panel of three federal judges at the court hearing in Toronto.
“Seismic testing is taking place in their supermarket, in their kitchen.”
The seismic companies, known simply as TGS, PGS and MKI, are hoping to survey what lies beneath the sea floor starting in July 2015, to determine if there is potential for oil and gas extraction.
With the clock ticking on the survey’s impending start date this summer, lawyers on both sides requested an early hearing in the hope of getting a ruling before the ice-free season begins.
Many Inuit in Clyde River and throughout the Baffin region fear the loud sounds and vibrations caused by seismic testing could cause permanent damage to the narwhals, bowhead whales, walrus, seals and fish that inhabit those waters, and disrupt marine mammal migration routes.
Hasan also argued that, in making its decision, the National Energy Board failed to consider Aboriginal rights, while the Crown failed in its duty to meaningfully consult Inuit.
The NEB accepted the proponent’s information at face value, Hasan argued, and did not meaningfully engage Inuit in Baffin communities on the issue.
And that raised a much larger question for the court, about how to determine when a consultation practice is adequate.
Hasan pointed to specific questions that had been put to NEB staffers or consultants visiting Baffin communities in 2013.
They included which animals would be affected by seismic testing and how; what kind of impacts might be monitored in the long-term and whether Inuit would be compensated if the seismic surveys inflict negative impacts on their harvesting activities.
“Ultimately, there was no answer,” Hasan said.
But science doesn’t offer that kind of certainty, said Nancy Rubin, legal counsel for the seismic companies.
“As much as we wish we could provide absolute certainty that there will never be any adverse reactions, that’s not the standard here,” Rubin told the panel of judges April 20.
“Consultation is not a point in time,” Rubin argued, referring to Hasan’s examples of unanswered questions. “It’s an ongoing process.”
And it’s a process Inuit in the Baffin region should be used to, she said: since the late 1960s, Rubin told the judges there have been roughly 200 seismic surveys carried out in the region.
“This is not virgin territory,” Rubin said, adding: “The project is non-extractive. It collects data to understand the subsurface condition. What’s done with that data is years away.”
Ultimately, she said, Inuit communities had plenty of information and time to respond to the proposal in the three and half years leading up to the NEB’s 2014 decision.
“A lot of effort was made to put that information in a package that was understandable,” Rubin said. “And at no time did anyone contact [the NEB] saying that it was difficult to access or they needed additional copies.”
Lawyers for the seismic companies and the Crown also argued against the applicant’s right to file the legal challenge, suggesting it should instead have been filed on their behalf by a regional or territorial Inuit association.
Lawyer Sandy Carpenter argued that individual Inuit — in this case, residents of Clyde River and its HTO — do not hold the right to be consulted.
“None of the applicants are granted those collective rights under the Nunavut Land Claims Agreement, and none of them are owed the duty to consult,” Carpenter told the panel of judges.
Both the Qikiqtani Inuit Association and Nunavut Tunngavik Inc. took part in the NEB’s consultation process — QIA even offered its support to set up community hearings.
But in the end, neither QIA nor NTI took part in the appeal.
Following the day-long hearing, federal court justices Eleanor Dawson, Marc Nadon and Richard Boivin opted to reserve their decision and release it “in due course.”
“Another hurdle is out of the way,” said Clyde River mayor Jerry Natanine outside the courtroom April 20.
“I think we have a good chance,” he said. “The case is solid.”
Natanine has received an outpouring of support since he arrived in Toronto last week, from environmental group Greenpeace, which is helping to fund the lawsuit, and the newly-formed Clyde River Solidarity Network, a coalition of activists and celebrities.
That group hosted a noon hour rally in front of the federal courthouse April 20, hoisting a giant banner that read “We Support Clyde River” and serving country food to the public.
“There’s a great turnout,” said Cassel Kapolak of Cambridge Bay, a student from the Ottawa-based Nunavut Sivuniksavut college who travelled to Toronto for the hearing.
“It’s good that they’re interested,” she said. “It’s a really big issue that Inuit are going to be facing.”