Hamlet of Clyde River: Seismic Testing & An Unclear Role for Tribunals in Duty to Consult

In what is being called a “David and Goliath” face-off, a small Inuit town is fighting three multi-billion dollar energy companies to protect the marine life of the Baffin Bay from seismic testing. The town has seen support from Greenpeace, Amnesty International, the Green Party, and celebrities like Naomi Klein and Emma Thompson.

Most of the residents of Clyde River are Inuit, who have relied on the harvest of marine mammals from Baffin Bay and the Davis Strait for thousands of years. In May of 2011, a plunderbund of energy companies—TGS-NOPEC Geophysical Company, Petroleum GeoServices, and MultiKlient Invest—applied to begin seismic testing in the area. The National Energy Board (“the Board”) granted their application. A number of groups appealed the Board’s decision, including the Hamlet of Clyde River, the Nammautaq Hunters and Trappers Organization (an organization mandated to oversee and manage wildlife harvesting among the Inuit), and Jerry Natanine, the mayor of Clyde River. They argued that the Board did not properly consult with the impacted communities.

It looked like the fight was over when the Federal Court of Appeal (“FCA”) ruled in 2015 that the authorization for seismic testing was reasonable and the Crown’s duty to consult had been fulfilled. However, in March of this year, the Supreme Court of Canada (“SCC”) granted leave to appeal the FCA decision, meaning that the legal battle is not yet over. The appeal will be heard alongside Chippewas of the Thames First Nation v Enbridge Pipelines, 2015 FCA 222, a similar case where the National Energy Board approved an Enbridge project to increase the oil flow of a pipeline that runs through the territory of the Chippewas of the Thames First Nation. The Chippewas worried about the impact this could have on the surrounding Thames River, and argued in court that the duty to consult had not adequately been fulfilled. You can see The Court’s coverage of that case here.

Hearing these two cases together indicates that the SCC will address some remaining questions about the role of tribunals and boards in the duty to consult.

Seismic Testing: Adverse Environmental Effects?

The three oil and gas companies want to undertake a seismic survey in Baffin Bay and the Davis Strait.

Seismic testing is a controversial method of oil and gas prospecting. It works by blasting focused sonic waves along the ocean floor in order to detect oil and gas deposits. These sound waves are 100,000 times louder than jet-engine takeoffs, and the noise from a single seismic survey can travel tens of thousands of square kilometers. Unsurprisingly, scientists have found that this seismic testing can have a major impact on marine wildlife, causing many marine animals to go deaf and disrupting their migration patterns as they seek to get away from the noise.  Note also that one of the biggest distributions of narwhales—which Canada’s Committee on the Status of Endangered Wildlife has identified as a species of “special concern”—are predominately located in Baffin Bay and the surrounding waters.

Clyde River Major Jerry Natanine stated that the proposed project would allow these sonic waves to be blasted every 15 seconds for four months over the next 5 years.

And yet, the Board concluded that the project was “not likely to result in significant adverse environmental affects” (para 6), and granted authorization—alongside a number of conditions and mitigation measures—for the three oil and gas companies to begin seismic testing.

Clyde River and co. appealed that authorization, asking for a judicial review of the National Energy Board’s decision. Specifically, the applicants claimed that the Crown’s duty to consult with the Inuit regarding this project was not adequately fulfilled, and that the Board erred in issuing the authorization to the proponents.

Perfect Satisfaction Not Required

In a unanimous decision, the FCA held that the National Energy Board had fulfilled the Crown’s duty to consult, and that the Board was reasonable in concluding that the project was not likely to produce adverse environmental impacts.

On the question of the duty to consult, the three companies argued that they had conducted exhaustive four-year-long consultations, including multiple meetings, revisions to the design of their project after some of these meetings, and an environmental assessment that was highly responsive to the concerns raised by the Aboriginal participants. The Board’s own regulatory processes allowed for plenty of community engagement, with important Board documents translated into Inuktitut. The Crown did not engage in any independent consultation.

The Inuit of Clyde River argued that many of their questions had been left unanswered, and that the consultations had not meaningfully engaged with their concerns.

Justice Dawson for the FCA agreed with the companies and with the Board that the duty to consult had been met. She held that the duty to consult in this case lay on the high end of the spectrum, meaning that deep consultation would be required. In her opinion, that high level of consultation had been met.

In a key statement, Justice Dawson held that “the consultation process does not give Aboriginal groups a veto over what can be done with land pending final proof of their claim. Nor does consultation equate a duty to agree … perfect satisfaction is not required” (para 47).

What Role Do Tribunals Play in the Duty to Consult?

Justice Dawson’s decision allows the Crown’s duty to consult to be entirely discharged through a regulatory board like the National Energy Board; the court writes that the National Energy Board does have a “mandate to engage in a consultation process such that the Crown may rely on the process to meet, at least in part, its duty to consult with Aboriginal peoples” (para 65). Justice Dawson specifically clarified that this would not always be the case, and was here mandated only through the Canadian Environmental Assessment Act, 2012, SC 2012, c 19, s 52.

This seems to fly in the face of SCC jurisprudence, which said in Haida Nation v British Columbia (Minister of Forests), 2004 SCC 73: “The Honour of the Crown cannot be delegated” (para 53). Indeed, this is a contrary result to Chippewas. In Chippewas, the FCA found that the National Energy Board was not required to determine whether the Crown’s duty to consult had been fulfilled.

We are left with contradictory holdings on the role of tribunals—and more specifically, the National Energy Board, which often seems to be embroiled in litigation—in the duty to consult. It is, of course, important to note that both cases deal with different pieces of mandating legislation. And yet, these inconsistencies leave it entirely unclear as to whether and in what circumstances tribunals and boards can take over and discharge the Crown’s duty to consult. This discrepancy is certainly something the SCC intends to address in hearing Chippewas and Hamlet of Clyde River together. The court will likely release its decision in 2017.