Supreme Court to hear Inuit appeal of seismic testing in Nunavut

Clyde River’s Jerry Natanine talks to supporters April 20 outside the Federal Court of Appeal in Toronto. The Supreme Court of Canada’s decision March 10 to hear the appeal of Clyde River residents against seismic testing off Baffin Bay could set a huge precedent for Aboriginal consultation in Canada, says Natanine and his lawyer. (FILE PHOTO)

The highest court in Canada agreed March 10 to hear an appeal from Clyde River Inuit in their bid to stop a controversial five-year seismic testing program off the coast of Baffin Island near their community.

Jerry Natanine, former mayor of Clyde River, who has led the charge against a multi-national consortium of companies, was overjoyed with the news when reached at his North Baffin community March 10.

“Wow, unbelievable eh?” Natanine said, laughing.

“I had no idea how far this would go. At the time, I didn’t even know what we were trying to do. I definitely didn’t have this in mind at all.”

Having been at this for two years now, Natanine knows a few things about Aboriginal rights, and feels he and his colleagues have a strong case.

“We always said the consultation was very poorly done. We always thought justice was on our side and I’m thrilled the Supreme Court of Canada wants to hear it.

“This opportunity to stand before the judges and put our case forward, it’s a great honour and we won’t take it lightly… It could be a good precedent for oil and gas and mining in our territory.”

The battle began in June 2014 when the National Energy Board granted permission to a Norwegian group of companies — often referred to as Multi-Klient Invest, or MKI — to conduct five years of seismic testing in Baffin Bay and Davis Strait.

Seismic testing, used to map the sea floor for petroleum resources, involves pulling a sonar array behind a boat, emitting explosive blasts of sound every 13 to 15 seconds, 24 hours a day, and then recording the echo to build those seabed maps.

Natanine, the Hamlet of Clyde River and the Nammautaq Hunters and Trappers Organization, appealed that decision to the Federal Court of Appeal which ruled in favour of the seismic companies in August 2015.

On March 10, the Supreme Court granted leave to appeal which means it will hear the Clyde River case. That in itself is a victory, says Nader Hasan, Clyde River’s Toronto-based lawyer, from the firm Stockwoods.

Hasan said he always believed the case warranted a national hearing, but the Supreme Court only agrees to hear about five per cent of cases brought forward, so the news today, he said, is encouraging for Indigenous groups in Canada.

“I was over the moon,” Hasan said. “It’s confirmation that the Supreme Court acknowledges that this is a case of national importance.

“We knew from the outset that we were out-resourced by the other side and the only way we make up for that deficit is by working extremely hard,” he said.

“This case will be a precedent for all duty-to-consult cases, and all Aboriginal rights cases going forward, so we have to be mindful of the implications.”

The Supreme Court granted leave “without costs” meaning the seismic proponents are not obliged to pay Clyde River’s costs thus far.

The court has also decided to hear another case at the same time as the seismic appeal — that of the Chippewas of the Thames First Nation.

The Chippewas are also appealing a National Energy Board decision, this one allowing the expansion of an Enbridge pipeline through their traditional territory near London, Ont.

While the cases are unique, both Aboriginal groups share some legal arguments — the main one being the quality of community consultation required when development takes place on Aboriginal territory, a right protected in Canada’s Constitution.

Greenpeace Canada, which has brought moral and financial support, and international attention, to Clyde River’s fight, was also pleased with the news.

“Today’s Supreme Court announcement is incredible news for Baffin Island Inuit who have been opposing seismic blasting for its impacts on marine life and food security in the north,” said Jessica Wilson, head of Greenpeace Canada’s Arctic campaign, in a March 10 news release.

“Clyde River will finally have a ruling from Canada’s highest court on an oil exploration project which was approved without Inuit consent and which would also devastate the Arctic marine environment.

“A ruling in favour of Clyde River would set a just precedent for all Indigenous Peoples in terms of their right to choose whether or not oil and gas development happens on their land or in their waters.”

Natanine said he is very grateful to Greenpeace and all his supporters around the world. He said he couldn’t sleep last night, worried that if the appeal was dismissed, that he would be letting a lot of people down.

“I want to thank everyone who supported us — so many people going through my mind. We really appreciate it,” he said. “Nothing could have been done without all those people behind us.”

Hasan now has about 12 weeks to compile all his legal arguments, and lower court evidence, and submit that to the court.

The seismic companies have eight weeks after that to respond with their legal factums and evidence.

Hasan said it usually takes about six months from the time the Supreme Court gives leave to appeal to the actual hearing.

But that would take the hearing into summer, when the companies want to launch their seismic program.

Hasan said he would either seek an expedited hearing from the court because of the tight timeline, or else seek an order from the court banning the companies from beginning the testing until the court has rendered its decision.

Last spring, when the case was pending before the federal court, the companies voluntarily postponed their project to summer 2016 in order to allow the legal process to take its course.

Hasan said he suspects the proponents will do the same again this year.

The Supreme Court hearing will likely take a full day, when it finally comes around, Hasan said.

Because of the high profile nature of the case, it’s likely a number of Aboriginal and environmental groups, and perhaps others, would seek intervenor status.

Official Intervenors are granted permission to make oral and/or written submissions to the court.

Supreme Court hearings are streamed live through their website for anyone unable to attend the Ottawa-based courthouse.

Nunatsiaq News has contacted the law firm representing the seismic consortium to get their reaction to today’s news, but so far, we have received no response.