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Clyde River prepares for court
Seismic testing case hinges on legal definitions of deep consultation and accommodation

Michele LeTourneau
Northern News Services
Monday, November 21, 2016

The Nunavut Wildlife Management Board (NWMB) is worried about losing powers as the Supreme Court prepares to hear Clyde River's case against a consortium granted a licence by the National Energy Board (NEB).

The territorial board is one of several interveners in the appeal, which will be heard Nov. 30. The case seeks to overturn the energy board's 2014 decision to grant three companies - Petroleum Geo-Services Inc. (PGS), Multi Klient Invest AS (MKI), and TGS-NOPEC Geophysical Company ASA (TGS) - a five-year licence to conduct a seismic survey in Baffin Island and Davis Strait.

In the territorial board's intervention filed earlier this month, it sets itself apart from the National Energy Board by pointing out its unique relationship to Inuit.

"The NEB is a very different tribunal than the NWMB, operating under a dissimilar context and set of instructions. The NEB is an independent economic regulatory agency that oversees international and inter-provincial aspects of the oil, gas and electric utility industries," states lawyer for the territorial board Michael d'Eca.

"In contrast, the NWMB is an Inuit-Crown institution of public government, operating under a unique land claims agreement (NLCA), with its primary purpose being to protect Inuit rights and interests while respecting the principles of conservation."

d'Eca notes the wildlife management board is obligated to ensure the Crown has fulfilled its constitutional duty to consult and, where appropriate, accommodate indigenous peoples. The board is requesting that its role not be diminished.

"Whatever view this honourable Court takes of the issue of National Energy Board (NEB) consultation, the NWMB respectfully takes the position that it should be without prejudice to the established role of the NWMB in the assessment of the Crown's efforts at consultation and accommodation and in rectifying any consultation and accommodation deficiencies on the part of the Crown."

The Clyde River case is of national importance as it will deal definitively with the Crown's duty to consult and accommodate indigenous people. The Chippewas of the Thames River First Nation near London, Ont., are presenting similar arguments in a case against Enbridge Pipelines.

The Nunavut Wildlife Management Board is also intervening in the Chippewas appeal.

Nunavut Tunngavik Inc., meanwhile, points out in its intervention that Inuit requested a strategic environmental assessment to inform both the consultation process and the energy board's decision.

"It was an issue for the Crown to promptly and seriously consider, and it failed to meet that obligation," states NTI's lawyer Dominique Nouvet.

NTI acknowledges the energy board's role in consultation, even agreeing that in some cases the board might in fact satisfy the duty to consult.

"However, direct Crown consultation must supplement the NEB process where the aboriginal group raises project-related issues, concerns, or accommodation proposals that the NEB does not or cannot address," states Nouvet.

As noted by Makivik Corporation's intervention, it was the energy board's position that it lacked the power to carry out a strategic environmental assessment, therefore "the (energy board) does not have the remedial powers necessary to accommodate Inuit rights since it could not order a strategic environmental assessment."

Much of the content of these interventions, like Clyde River's own statement to the court, hinges on levels of consultation, such as "deep consultation" which relates to rights of high significance to aboriginal people or when the risk of non-compensable damage is high.

The Inuvialuit Regional Corporation also hopes to see "deep consultation" clarified, saying it is "a logical and necessary next step" and should be grounded in "the international legal principle of free, prior and informed consent as outlined in the United Nations Declaration on the Rights of Indigenous Peoples."

The Attorney General of Ontario, while acknowledging the duty to consult and accommodate "is a profoundly important duty," states that sometimes a tribunal such as the energy board can fulfill the Crown's duty. It hopes any decisions by the court will "encourage flexibility and responsiveness to the facts, rather than consist of a fixed checklist of procedural requirements."

"The Inuit were entitled to deep consultation, including a meaningful form of substantive accommodation," stated Clyde River lawyer Nader Hasan, who hopes to see the energy board's licence for seismic testing in Nunavut waters to the consortium cancelled.

"Instead, they got an impoverished conception of procedural fairness, and no substantive accommodation that would protect their recognized treaty rights. If this case qualifies as deep consultation, then the duty to consult has been rendered meaningless ... it sets a new low-water mark."

For Clyde River supporters in Ottawa, rallies are planned outside the Supreme Court of Canada at 8 a.m., noon and 4 p.m. A sunrise ceremony is scheduled for 6:30 a.m. a few blocks from the court on Victoria Island.

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