Nunavut seismic opponents take their fight to the Supreme Court
“It’s never dealt with a case quite like this"
Vowing that the fight is not over, Clyde River opponents of seismic testing off Baffin Island say they will ask the Supreme Court of Canada to hear their case now that the Federal Court of Appeal has ruled against them.
“One thing’s for sure, we won’t stop our fight here,” said Clyde River mayor Jerry Natanine, in an Aug. 18 news release issued by Greenpeace Canada.
“We will be appealing this decision to the Supreme Court of Canada. We will also be continuing our work to bring people’s attention to this issue.”
The three-judge federal appeal court issued a unanimous decision Aug. 17 denying Natanine, the Hamlet of Clyde River and the Nammautaq Hunters and Trappers Organization, the ability to overturn a 2014 decision made by the National Energy Board to allow seismic testing to go ahead.
The Clyde River opponents launched their legal application after the NEB, in June 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 to map the seabed for potential hydrocarbon resources.
The project was supposed to start in summer 2015, but MKI has postponed it for at least one year.
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.
Clyde River’s lawyer Nader Hasan offered many arguments opposing the seismic plan to the federal court, but the case hinged on whether the Crown fulfilled its duty to consult aboriginal people as guaranteed by Canada’s Constitution.
Reached in Toronto, Hasan said Aug. 18 that he was encouraged by several things in the decision including that the court agreed his clients had legal standing in this case, something the seismic proponents argued against.
He was also pleased that the federal court agreed a high level of consultation is necessary to fulfill the Crown’s duty to consult aboriginal people when industrial development could potentially impact their way of life.
But he disagreed with the federal court’s conclusion: that consultation, in this case, was full enough and adequate to meet the constitutional requirement.
“This is fundamentally about how Canada, how the Crown, acting through its ministers and through the regulatory process, discharges its sacred promises to aboriginal and Inuit peoples across the country,” said Hasan. “It’s never dealt with a case quite like this.”
While phone service to Clyde River was patchy Aug. 18, Hasan said he was able to reach Natanine for instructions on what to do next.
The mayor told him both the hamlet council and the hunters and trappers organization had met and decided to take the next and last remaining step to stop seismic testing near their communities — by seeking leave to appeal to the Supreme Court of Canada.
Hasan, who has appeared before the Supreme Court numerous times, said within the next 60 days, he will apply for leave to appeal — an application that is vetted by a panel of three Supreme Court judges.
Only about five per cent of cases brought before the country’s highest court are accepted, Hasan said, and one of the primary criteria is that the issue needs to be of national importance. Hasan believes this is one of those cases.
The Constitution compels the Crown to consult with aboriginal people when development can potentially impact their culture and livelihood, he said.
In this case, that duty to consult was discharged to the NEB, a tribunal, which then turned over the community consultation process to the very companies proposing the testing.
That consultation process failed to offer residents basic information on whether the underwater blasting would harm mammals and fish, Hasan said, and on that basis alone was inadequate.
“The proponents… they are not the Crown. They are private industry. They have their own interests. They have no fiduciary duty to Inuit and aboriginal peoples. They have their duties to their shareholders. So the proponents can’t discharge the duty to consult,” Hasan said.
Because the seismic consortium is hoping to begin its five-year testing program in summer 2016, Hasan will ask the Supreme Court to expedite their leave to appeal process.
If the high court agrees to hear the case, they will then ask for an expedited hearing, Hasan added, in order to get legal certainty before the extensive seismic program is set to unfold next summer.
Most people in North Baffin, along with Inuit organizations, have condemned the seismic 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.
Their opposition garnered international attention when Greenpeace took up the cause with numerous organizations and even Hollywood stars offering vocal public support for Clyde River’s fight.
Aboriginal Affairs and Northern Development Canada is currently conducting a strategic environmental review to examine the comprehensive impact of oil and gas development off Baffin Island.
On the east side of Baffin Bay and Davis Strait, the Government of Greenland is undertaking an extensive offshore oil and gas exploration program, though its population remains divided on whether to support economic development over environmental protection.