Supreme Court of Canada to Rule on Indigenous Relationship with Energy Sector

Supreme Court to Issue Landmark Rulings on Indigenous Relationship with Energy Sector

John Paul Tasker | July 25, 2017

The Supreme Court will deliver two landmark rulings Wednesday that could lead to fundamental changes for Canada’s energy sector and its relationship with Indigenous Peoples. At issue is the Crown’s constitutional obligation to consult with Indigenous Peoples before approving the construction of a pipeline or allowing a natural resources project to proceed. The top court is expected to give further details on just how much consultation is required, and who should be doing it.

Energy companies have signalled they are concerned that a longer, more arduous consultation process could stymie projects and the jobs that come with development.

Some First Nations and Inuit activists have said that the National Energy Board, the country’s energy regulator, has inadequately consulted with their communities before approving projects. There have also been questions as to whether NEB members are best equipped to represent the federal government in these sorts of consultation talks with Indigenous Peoples.

There are two cases at issue. The first was brought by Inuit living in the small Nunavut community of Clyde River, who are opposed to offshore seismic testing in Baffin Bay. A Norwegian consortium wants to conduct the testing so it can search for oil and gas.

The Inuit have said the NEB should never have approved the permit for this type of testing — which uses sound wave technology to see if there are reserves under the sea floor — because of the possibility it could disrupt fish and sea mammals the community relies on for food. The Supreme Court will rule on whether the NEB adequately consulted Inuit in the area when it gave the green light to the testing. (The consortium has delayed testing three times because of the legal action.)

‘Existential threat’

Nader Hasan, the lawyer representing the Inuit, said the best possible outcome would be the Supreme Court reversing the NEB’s 2014 decision to grant a five-year permit for the companies to conduct this type of “blasting.”

“There have certainly been other cases where there has been far more consultation than what happened in Clyde River, where the government just wasn’t there — full stop. The Inuit wrote to the minister saying, ‘The NEB ran roughshod over our rights, you owe us a duty of consultation, where are you?’ And the minister wrote back saying, ‘We’re going to leave it to the NEB,'” Hasan said, speaking of former Conservative Aboriginal affairs minister Bernard Valcourt.

“There was no consultation outside of the regulatory process. We’re asking the court to put an end to that [and] give some much-needed guidance on what exactly the duty to consult looks like and what is required to make deep consultation meaningful,” Hasan said in an interview with CBC News ahead of the ruling.

Jerry Natanine, Clyde River’s former mayor and a leading voice against the testing, said the NEB process was a foregone conclusion. “When they were going up there telling us what they were going to do, it wasn’t a consultation,” he said. “They just told us what they were going to do and didn’t answer our questions.”

“This decision means everything to the Inuit, seismic blasting is an existential threat,” Nasan added. “It is a threat to their food security and their 3,000-year-old way of life.” …

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