Supreme Court set to rule in two potentially landmark cases over duty to consult indigenous communities

OTTAWA — Experts say two cases coming before the Supreme Court this week could become landmarks in defining how Canada regulates industrial activity on indigenous lands.

Ansgar Walk / Wikimedia
Ansgar Walk / WikimediaThe of Clyde River, .

But for Jerry Natanine of Clyde River, Nunavut — one of two that will ask the top court to overturn National Energy Board permits — the issue is a lot more visceral.

“The animals that we live off are in danger and, because of that, we feel our lives are at stake.”

Clyde River is to ask the court Wednesday to overturn a permit for a Norwegian consortium to do seismic in Bay.

The tests involve a five-year program of 230-decibel sound blasts every 13 to 15 seconds, 24 hours a day, during operating periods. Locals say that would kill or drive away the animals they depend on, a position widely shared across Nunavut.

Lawyer Nader Hasan said the federal ignored its duty to consult and left that completely — and wrongly — to the board.

“Although the stakes were extremely high, the Crown absented itself entirely from the process,” he said.

Neither the Crown nor the board at any time in meaningful with the Chippewas First Nation.

No public hearings were held and local people had no chance to examine statements from the proponent. The board didn’t even ask itself if that constitutional duty had been met, Hasan argues.

The Chippewas of the Thames have similar concerns in a case that is to be heard together with Clyde River’s.

The Chippewas want the court to overturn a permit given to Enbridge to reverse and expand the flow of the Line 9 pipeline between Sarnia, Ont., and Montreal.

“Neither the Crown nor the board at any time engaged in with the Chippewas First Nation regarding the nature of their asserted aboriginal rights and interests,” says the band’s written argument.

“This … effectively allows the Crown to avoid its constitutional duty simply by choosing not to participate in the board’s hearing process.”
In both cases, Ottawa argues that the board was qualified to stand in for the Crown and aboriginal had plenty of opportunity to get information and express their concerns. In a verdict the two suits are seeking to overturn, the Federal Court of Appeal sided with the government.

The cases will have a major impact in how Canada assesses such proposals in the future, said Nigel Bankes, chairman of natural resource law at the University of Calgary.

“It raises this question of whether a board has a duty to satisfy itself as to whether the Crown has discharged its responsibilities to consult and accommodate,” he said.

He added that because the Chippewas case involves a pipeline, it may be even more important than Clyde River.

“The real challenges that we have in Canada are linear projects that affect so many different communities; therefore, the challenge of consultation and accommodation is much more difficult.

“Clyde River is much about the particulars of what will satisfy the duty. The issue in the Chippewas is much more an issue of principle.”
Clyde River, though, has become much better known. Greenpeace, along with other groups such as Amnesty International and the Council of Canadians, has thrown its support behind the community.

An international petition has gathered almost 200,000 signatures. Celebrity activist and actor Emma Thompson has visited Clyde River. Media mogul Oprah Winfrey, satirist John Oliver and actor Leonardo DiCaprio have tweeted in support.

About Bob Weber, The Canadian Press