Clyde River lawyer wants to accelerate court action on seismic testing

Nader Hasan, lawyer for Clyde River opponents to seismic testing off Baffin Island, is hoping a judicial review of the National Energy Board’s approval of the project can be heard soon since the companies want to begin their seismic work in summer 2015. (PHOTO COURTESY NADER HASAN)

Jerry Natanine, mayor of Clyde River, is leading the charge against seismic testing off the coast of his north Baffin community. (PHOTO COURTESY JERRY NATANINE FACEBOOK)

The lawyer representing Clyde River parties opposed to seismic testing in Baffin Bay and Davis Strait has filed a motion in the Federal Court of Appeal in the hope of speeding up the legal process.

Nader Hasan, who represents the hamlet, the Nammautaq Hunters and Trappers Organization and Mayor Jerry Natanine, filed a joint Motion to Expedite Hearing on Dec. 4 on behalf of his clients and also lawyers representing the seismic companies.

Hasan, who spoke with Nunatsiaq News on Dec. 3, said the application is “urgent” since the companies who want to conduct seismic testing off the coast of Baffin Island have National Energy Board approval and are planning to begin their five-year project as soon as the ice melts in 2015 — likely July.

“Absent an early hearing date, the Applicants will be required to bring a motion for an interim injunction to prevent the Respondents from beginning seismic testing before this Court has decided this Application,” Hasan wrote in the motion.

“Such a motion will result in the duplication of proceedings.”

The seismic proponents, identified in legal documents as Petroleum Geo-Services Inc. (PGS), Multi Klient Invest AS (MKI), and TGS-NOPEC Geophysical Company ASA (TGS), want to drag a sound array gun from behind a ship off the Baffin coast to scour the seabed for potential oil and gas reserves.

Clyde River opponents, who now have the backing of numerous groups such as the Nunavut Association of Municipalities and Greenpeace International, say they were not properly consulted on this project, that they believe it could be harmful to marine wildlife and that they want a comprehensive review of oil and gas development before even considering such a project.

Legal proceedings began July 28 when Hasan launched an application in the Federal Court of Appeal asking the court for a judicial review of the National Energy Board’s approval of the project.

Last week, on Nov. 28, Hasan submitted a written summary of his clients’ case to the court.

That factum, as it’s called, elaborates on the specific reasons Clyde River residents are opposed to the testing.

One of the main arguments, and the one Hasan spent most time on in the factum, is the constitutional duty of the Crown to consult Aboriginal people prior to approving projects that could potentially impact their livelihood, traditions and culture.

“I can only speculate that no one thought that the people of Clyde River, or the region, would stand up for their rights,” Hasan said, when asked why he thought events occurred the way they did. “Given the precedent, given that this is established law, I can’t see any other explanation.”

While it’s true the companies proposing the seismic testing did hire firms to hold public hearings in North Baffin, Hasan argues that they did an inadequate job consulting and informing local people about the potential impacts of their project.

And even if they had done a thorough job, Hasan argues that the NEB, as a quasi-judicial body, had no legal right to discharge the consultation responsibility to the very people who were proposing the project.

Hasan cites Supreme Court rulings, the Nunavut Land Claims Agreement as well as the Canadian Constitution, to argue that it’s the Crown’s job — not that of a private firm — to properly ensure Aboriginal people are informed and engaged in the consultation process, in their own language, and in a way that is meaningful and accessible to them.

That’s why the Attorney General of Canada is named as a respondent in the court case along with the various seismic companies and their corresponding acronyms.

“Despite pleas from representative Inuit organizations, including but not limited to the Applicants, the Federal Government refused to become involved in the process,” the Clyde River factum states.

“The Proponents were unable or unwilling to show that the Inuit rights and interests would be protected. They were unwilling to meaningfully engage with members of the communities. Nor were they able (or willing) to answer even basic questions about the impact of seismic testing on marine life.”

Hasan expands on these potential impacts half-way through the factum saying scientific studies show, “Arctic mammals may be especially sensitive to underwater noise,” and that narwhals, in particular, are “acutely affected by seismic noise.”

These statements are one-sided legal arguments which have not been rebutted by the seismic companies nor scrutinized in court.

The proponents have until Dec. 19 to submit their factums or facts of the case which will likely argue their position on the potential impact of seismic testing, proposed mitigation measures, how they went about consulting local communities and the Inuit benefit agreement they drafted — a document that has been filed with the Crown but not made public.

Neither Ottawa nor the companies agreed to provide us with a copy of that benefit agreement.

There are several other outstanding motions before the Federal Court of Appeal in this case.

The seismic companies have asked that the court strike from evidence two affidavits put forth by the Clyde River group — that of marine biologist and bioacoustics specialist Linda Wielgart and cultural ecologist George Wenzel who has studied the Clyde River people and their culture for three decades.

The court has not yet ruled on that motion.

Also, the NEB has asked for intervenor status in the case but there is no ruling on that yet either.

Hasan is requesting that the proceedings, which will be heard by three Federal Court of Appeal judges and will likely take only a day, be held in Iqaluit, something he describes as “unusual but not unprecedented.”

As a consolation, he’s asked that a southern-based hearing be simulcast at the Nunavut Court of Justice so local people can follow the case in real time. He has also asked that the hearing proceed early next year, by March at the latest.