“True reconciliation is rarely, if ever, achieved in courtrooms.”
So writes the Supreme Court of Canada in its recently released decision in Clyde River (Hamlet) v Petroleum Geo-Services Inc. This case is being considered a victory for the residents of Clyde River – it was their appeal that brought the case before the Court - and there are significant implications for other Indigenous groups facing infringements of their rights where those infringements have been authorized by government tribunals.
The National Energy Board (NEB) is a regulatory agency and federal administrative tribunal. It was created by (but independent of) the federal government. Petroleum Geo-Services Inc. (the proponent) applied to the NEB to conduct seismic testing for oil and gas in Canada’s northern Nunavut territory. The residents of Clyde River (located on the Northeast coast of Baffin Island) opposed this testing, since they rely on the marine mammals (bowhead whales, narwhals and various seal types) located in the region as their primary food source. These species are also of cultural, spiritual and economic importance to the Indigenous people in this region. Perhaps most importantly, these animals provide an alternative to the high prices of food which result from flying food into Nunavut from the south. The NEB ultimately approved the testing, claiming that it had fulfilled its duty to consult with the local Inuit, in accordance with its legal obligations as spelled out by the Supreme Court in its 2004 Haida decision.
The Supreme Court of Canada found that the NEB did not, in fact, fulfill its duty to consult. The Inuit right to harvest marine mammals is a defined right in the Nunavut Land Claims Agreement. In Haida, the Supreme Court held that the duty to consult falls along a spectrum, “from limited, to deep consultation, depending on the strength of the Aboriginal claim” at issue (para 20). Here the Court found that the duty required of the NEB “deep consultation,” since the testing could affect “the mortality risk of marine mammals, cause permanent hearing damage and changed migration routes, affecting traditional resource use.” Not only are these mammals a traditional source of nutrition and traditional clothing, but are also critical in the Inuit practice of sharing food communally. The impact would be devastating if hunting (an integral part of Inuit culture) was disrupted by seismic testing. The results of the testing could negatively affect many aspects of Inuit culture, yet the NEB approved Petroleum Geo-Sources’ application, stating the proponent had taken sufficient mitigation measures, and because the the full impact of the testing could not be known with certainty.
One of the core issues raised by this case was whether or not the duty to consult, which lies with the federal Crown, applies to the NEB at all. As an arms-length tribunal, the NEB is independent of Ministers and can make final decisions of its own accord. However, the court found that the distinction between the Crown and the NEB fell away in this situation. This is because the NEB essentially acted as the Crown since it made the ultimate decision to permit testing; an action that would trigger the duty to consult were the Crown to have made the same decision. The Crown cannot use independent tribunals to undermine the duty to consult.
Having found that there was a duty to consult, the Court considered whether or not the NEB had engaged in an adequate level of consultation. It found that the NEB’s process was inadequate in several respects. First, the NEB looked at the potential impact on marine mammals themselves from the seismic testing, but no consideration was given to the treaty right to hunt marine mammals. Second, while the Crown may rely on the NEB to fulfill its duty to consult, it must be made known to the Indigenous group when it does so. Third, there was no deep consultation as required where the Crown may deeply impact treaty rights. There were limited opportunities for participation and consultation. Deep consultation may require “making submissions for consideration, the opportunity to participate in the decision making process, and the provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision” (Haida, at para. 44). The NEB provided some documentation to try and answer questions, but these were only partially translated into Inuktitut, the main language spoken by the local Inuit community. For these reasons, the Court quashed the NEB’s approval for the project.
This case could mark a major turning point in the conversation over Indigenous rights in Canada, as they relate to resource development. Tribunals may have the power to act as the Crown (depending on the situation), and if so, will be required to discharge the Haida duty to consult. Severe infringement on rights will require deep consultation; and more action and involvement with Indigenous groups than if the rights were less seriously infringed.
The treaty rights engaged in this case included the right to hunt marine mammals. This right is important not just for food, but also to ensure traditional knowledge of the Inuit passes down to the next generation. Seismic testing would not only have impacted a key food source, but the very ability of the Inuit living in Clyde River to maintain their traditional way of life. As the Court noted in its decision, “[a] project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest.” Indigenous groups across Canada will be watching closely to see just what impact these words will have in the months and years ahead.