Clyde River seismic testing dispute heads to Canada’s Supreme Court

By Kevin McGwin, The Arctic Journal - November 30, 2016

In issuing her 2015 decision permitting a group of companies to conduct seismic testing in Baffin Bay, against the wishes of local communities, Eleanor Dawson, a Canadian federal justice, concluded that while the federal government had a duty to consult affected residents, this was not the same as needing to get their permission.

“What is required,” Dawson wrote, “is a commitment to a meaningful process of consultation.”

This is not a point the residents of Clyde River, which has been granted permission to appeal the decision to the Supreme Court, in a case that begins on Nov. 30, disagree with Dawson on.

Instead, what the representatives of the coastal community of about 1,000 argue is that the consultation process that led to the original decision, in 2014, to permit the three companies –  Petroleum Geo-Services, TGS-NOPEC and Multi Konsult Invest – to carry out seismic testing, did not meet the definition of meaningful.

“Instead, they got an impoverished conception of procedural fairness, and no substantive accommodation that would protect their recognized treaty rights,” the hamlet wrote in its request to be able to appeal the ruling.

In the application, Clyde River’s representatives underscore that the hamlet’s beef is not with extraction projects in general. To the contrary, the community says it would support projects, but that they must not affect traditional livelihoods or culture.

Such proof, residents feel, has not been given by the companies looking to carry out seismic testing, one of the first steps in the search for oil, but also harmful to wildlife, given the loud bursts of sound it requires. Court documents state that during the four community meetings, held as part of an approval process that lasted more than three years, company representatives were either “unable or unwilling to show that the Inuit rights and interests would be protected”.

Making matters worse, according to Nader Hasan, the barrister who will argue the case on behalf of Clyde River, is that the National Energy Board, the federal agency responsible for reviewing the information submitted by the companies, was aware of the shortcomings.

“The companies involved did a terrible job,” he says, “but the essence of our complaint is that the crown failed.”

Among the failures listed in court documents was an unwillingness by the federal government to carry out a Strategic Environmental Assessment, a study that determines the environmental impact of human activity and seeks to identify alternatives.

The NEB, according to documents filed by Nunavut Tungavik Incorporated, an Inuit group, in support of Clyde River, indicated that the agency would have considered the results of an SEA in its decision-making “if it were available and appropriate”. However, it had been up to the federal government to initiate one, and none was never carried out.

“The crown was ultimately responsible for consultation, but wound up taking a hands-off approach,” Hasan says. “As a result, the Inuit did not get the consultation they were owed.”

Representatives from the three firms hoping to carry out the seismic testing declined to comment for this article. Instead, they refer to documents submitted to the court.

Those documents make two main arguments: firstly, that the approval process, as Dawson seemed to indicate, satisfied the letter of the law, and, secondly, that the people of Clyde River have a mistaken understanding of how consultation is carried out.

Should the court agree and find against Clyde River, the three companies will be free to begin their seismic surveys. A decision in favour of the hamlet, on the other hand, would likely see the consulting process begin again, say experts, although the companies could also choose to drop their plans entirely.

The wider effect of a decision against the firms would be to help establish the precedent that the greater the concern among affected communities, the more effort the federal government must put in to remove their fears. In other words, establishing the meaning of ‘meaningful.’