Legal wrangling begins over seismic testing off Nunavut

Clyde River residents protesting this past July 23 against the National Energy Board’s approval of seismic testing in Baffin Bay and Davis Strait. (FILE PHOTO)

The deadline for filing evidence at the Federal Court of Canada to support or oppose seismic testing off the coast of Baffin Island has expired, with at least two parties in the case submitting sworn affidavits to shore up their positions.

And already the legal squabbles have begun.

Seismic proponents are trying to get some evidence stricken from the record.

As well, the Attorney General of Canada has asked the parties named in the case for more time to submit their evidence to support seismic testing, something that does not sit well with Clyde River Mayor Jerry Natanine.

“I don’t like it. I think they’re just trying to play us so they can delay the ruling and go ahead and do the project,” said Natanine from his hamlet office Sept. 30. “I just see it as a delay tactic on their part.”

Nader Hasan, lawyer for the Clyde River group, said Sept. 29 that he plans to oppose Ottawa’s request for an extension unless the proponents agree to put the project on hold until court proceedings are over, or unless all parties, including the court, agree to conclude the matter in a timely way.

Echoing Natanine’s view, Hasan said he fears the issue will get bogged down in legal wrangling and the project may end up going forward anyway.

The proponents — a consortium referred to in legal documents as Petroleum Geo-Services Inc., or PGS — want to conduct seismic testing in Baffin Bay and Davis Strait when the ice breaks up in spring 2015.

The five-year program received approval from the National Energy Board in June.

Seismic testing consists of pulling an air gun array behind a boat that emits underwater blasts and helps companies map the sea bed, and what lies beneath, to gauge the potential for oil and gas development.

But the Hamlet of Clyde River, the Nammautaq Hunters and Trappers Organization and mayor Natanine, see seismic testing as the first step toward oil and gas exploration and extraction off the coast of Baffin Island.

They want the project suspended until Ottawa completes a comprehensive environmental review of potential oil and gas development off Baffin Island, a review that Aboriginal Affairs and Northern Development is currently conducting.

Opponents say they want proof that the sound waves won’t damage marine fish and mammals and they also claim they were not properly consulted prior to this project being approved by the NEB this summer.

Those claims and concerns form the crux of a federal court judicial review that the opponents launched in July.

Ottawa and PGS are each named in the court action.

Hasan has submitted five affidavits to the federal court, four of which offer new evidence not already submitted during the NEB’s project review process.

They include:

• Natanine, a traditional hunter, who fears the potential impact seismic testing could have on marine mammals and fish, the long-term impact of oil and gas drilling and who says public consultation was inadequate;

• Ilkoo Angutikjuak, a Clyde River hunter who stresses the importance of hunting and country foods to Inuit and adds that proper consultation and Inuit Qaujimajatuqangit did not form an integral part of this project;

• George Wenzel, a McGill University professor who for more than 30 years has studied and written books about the importance of marine mammals to the people, culture and economy of North Baffin, specifically Clyde River; and,

• Linda Weilgart, a Dalhousie University marine biologist and expert in bioacoustics, “particularly with regard to the role that sounds play in the biology of whales.”

Shortly after those documents were registered with the court, PGS made a motion to strike from the record both Wenzel’s and Weilgart’s submissions saying they are neither relevant nor legally admissible.

Hasan said the arguments from PGS are based on “technical grounds and are entirely without merit.”

Natanine said he was surprised to hear the proponents were trying to strike Wenzel’s testimony from the record.

“He’s been studying this stuff since the seventies,” said Natanine, laughing. “He knows more about it than all of us put together.”

For their part, PGS has submitted two affidavits to support their claim that the project is safe and that local people have been adequately consulted. Their affidavits consist of:

• Darlene Davis, project manager for RPS Energy, the company contracted by the seismic proponents to help the consortium secure a Geophysical Operations Authorization from the NEB — something that first requires an environmental assessment; and,

• Christopher Milley, adjunct professor of fisheries management at Dalhousie University and founder of Nexus, the company that PGS contracted to help plan and carry out community engagement in North Baffin.

Aside from dealing with the motions before the court about evidence and extensions, the next big step in the case will involve the two sides meeting to cross-examine the other’s witnesses, based on evidence given in those affidavits.

Hasan said he isn’t sure when that will happen.

On the other side of Baffin Bay and Davis Strait, Greenland is going ahead with an aggressive campaign to exploit their offshore petroleum potential.

A document outlining Greenland’s mineral strategy for 2014-2018 contains maps that show areas along much of the west coast of the island where companies such as Husky Oil, Conoco Phillips, Shell and Cairn Energy are currently exploring.

Meanwhile, the Wall Street Journal reported last week that Exxon Mobil Corp., and partner OAO Rosneft of Russia, found major quantities of oil and gas in an exploratory Arctic well off the coast of Russia in the Kara Sea.

The Arctic is estimated to hold some of the world’s largest deposits of undiscovered oil and gas.