Government lawyers: High Arctic seismic tests won’t harm whales

Lawyers representing the Government of Canada said in court Aug. 6 that there’s no evidence a seismic testing project would harm marine mammals in Baffin Bay.

“There are no reports of measurable, long-term impacts to marine mammals, including whales, or their habitats as a result of the seismic techniques to be used in the project,” reads the affidavit of Donald James, the project leader for the Eastern Canadian Arctic Seismic Experiment.

“Based on published scientific reports, there could be potential short-term [days] displacement of marine mammals… Nevertheless, normal behavioural patterns resume within hours or days of exposure to a seismic energy source.”

QIA’s lead lawyer, Peter Jervis, said that this assessment flew in the face of the experiences of Inuit, who say the witnessed disruption to local marine mammals after seismic testing in the 1960s and 1970s.

But federal government lawyer Duncan Frasier said the scientific evidence shows the impact on marine wildlife is minimal and short-term, if any.

He said seismic testing technology had advanced considerably since the 1960s and 1970s and no longer poses the same threat to marine life.

But Jervis replied that if the impact is as bad as Inuit affidavits suggested, “it may be the complete destruction of hunting for particular communities.”

Because of the potential for dramatic impact on the traditional Inuit way of life, Jervis argued the federal and territorial governments were constitutionally obligated to carry out extra consultations, rather than “blowing-off-steam” sessions, as he called the community consultation meetings that did take place.

He said the government should have consulted with local hunters and elders to determine marine mammal calving and feeding waters, migration routes, as well as Inuit harvesting areas and when they use them to minimize disruption.

Frasier responded by saying that consultation does not necessarily imply accommodation. And he said Jervis’s position would give local Inuit an effective veto over any project.

But Jervis said that the community consultation meetings in five communities to discuss the ECASE did not constitute the “meaningful consultation” that was required in the project’s approval from the Nunavut Impact Review Board.

That means Justice Sue Cooper should quash the project’s science license before the German research ship Polarstern reaches Baffin Bay Aug. 9 and begins pumping out 246-decibel sonic pulses to map the geological structure of the sea floor, Jervis argued.

When the ECASE project first went to NIRB it stated, “traditional knowledge of aboriginal resource use and timing of use will be addressed to prevent any measurable interaction. (i.e. scheduling of surveys within specific areas.)

The local knowledge of the movement and locations of marine wildlife should be incorporated into the research plans to minimize the impact on the environment. the NIRB said.

Jervis argued the community consultations that NRCan held did nothing to gather such knowledge, nor did they do anything to answer community concerns about damage to marine mammals.

Furthermore, Jervis said the NIRB’s screening decision recognized the inadequacy of the consultation when its approval of the project included the requirement that, “the Proponent shall conduct meaningful public consultation in potentially affected five communities… and an opportunity for additional mitigation measures to be developed to address public concerns prior to commencement of the project.”

Jervis said, said however, that the federal government did not add any significant additional mitigation measures to the project.

Frasier responded by arguing that the consultation had indeed been meaningful, and led to measures such as the employment of a third marine wildlife observer and the ship’s rerouting away from a bird sanctuary on Coburg Island.

Frasier also pointed out that the project will shut down the seismic equipment if a marine mammal is spotted within a kilometre, and wil use a gradual “ramping-up” period of the apparatus to give animals a chance to flee before the noise becomes harmful.

Both sides made much of statements from Donald James, who promised to take community concerns to his superiors and consider revising ECASE’s area of coverage.

Frasier said James’s statements demonstrated that the government listened to local concerns, but since the project would not significantly impact local wildlife, such a change would compromise the science of the project without adding any more protection to marine wildlife.

Jervis, however, argued that James’s apparent flexibility meant the project’s science was not as inflexible as the government suggested, and the project should change or be stopped.

According to Jervis, Justice Cooper has two issues to consider:

• whether to issue an injunction against the project because of the possible impact to marine wildlife; and

• whether to quash or suspend the research license issued by the Nunavut Research Institute because the consultations for the project were not “meaningful.”

If Cooper judges either question in favour of QIA, the future of the project is in doubt, according to James’s affidavit.

The Polarstern is one of the most highly-sought-after Arctic research boats in the world, usually booked years in advance.

Jervis said the government can always find another research ship at a later date, once consultation has been properly carried out and Inuit concerns addressed.

Cooper said she would issue a written decision by Aug. 8, the day before seismic testing is due to begin.