The duty to consult Indigenous communities — what it means and how it should be properly executed — is now a key issue for pipeline and petroleum companies hoping to proceed with proposed mega projects.

This was more than evident earlier this week in downtown Calgary when about 250 people gathered for lunch in The Palliser Hotel eager to hear a panel of experts discuss two recent Supreme Court of Canada decisions and their impact on resource project applications.

The two unanimous judgements rendered at the end of July both involved the responsibility of the National Energy Board (NEB) to conduct thorough consultations on behalf of The Crown with Indigenous communities impacted by resource development.

Clyde River, Chippewa of the Thames Cases Show Importance of Consultation

One decision, Clyde River, involved an authorization granted to Petroleum Geo-Services Inc. (a Norwegian-based company) to conduct marine seismic testing in Baffin Bay and Davis Strait. The Clyde River Inuit community asserted that the noisy underwater explosions would impact its treaty rights to harvest marine mammals such as seals, narwhals, whales and fish.

The NEB gave the go-ahead anyway. But the Supreme Court found that the NEB had only considered environmental effects and had given no consideration to the source (Treaty) of the Inuit community’s rights to harvest marine mammals, nor to the impact of the proposed activities on those rights.

“There were no oral hearings, and there was no participant funding. While these procedural safeguards are not always necessary, their absence in this case significantly impaired the quality of consultation,” the court found.

The second Supreme Court decision dealt with the Chippewa of The Thames First Nation in southwestern Ontario and Enbridge’s Line 9 oil pipeline reversal. In this case, the Supreme Court found that the NEB had conducted thorough consultations with the community. It also affirmed the NEB’s capacity and expertise to assess thorough consultation and accommodation to Indigenous communities.

The Supreme Court decisions not only reaffirmed the NEB’s duty to consult, they elaborated on what thorough consultation looks like, said Dwight Newman, Canada Research Chair for Indigenous Rights in Constitutional and International law at the University of Saskatchewan.

“No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subject to litigation,” he said during the panel organized by the University of Calgary’s School of Public Policy.

Resource Companies Grapple With Supreme Court Decisions on Duty to Consult #Indigenous Communities https://t.co/anD2jUvFTK #cdnpoli

— DeSmog Canada (@DeSmogCanada) August 24, 2017

‘Litigation Not the Answer’

Another member of the panel, Norine Saddleback, who hails from Maskwacis in central Alberta and is a member of the National Indigenous Monitoring Committee for the Kinder Morgan pipeline, said she much prefers thorough consultation that results in impact agreements to paying scores of lawyers to go to court.

“We are trying to build bridges with people who have been in our back yard for a long time,” she said. Several First Nations in the area where she lives have developed oil resources on their territory in partnership with petroleum companies.

“As Indigenous people our job is to provide balance. To protect the environment and our Indigenous use of the environment,” Saddleback said. “That can be done if Indigenous people are taken seriously by proponents.”

Gerry Chipeur, a Calgary lawyer who has represented the interests of both project proponents and Indigenous communities, said relying on the courts to settle development disputes is risky business.

“Litigation is not the answer,” he said.  

Panel participants agreed that the two recent Supreme Court decisions were an important indicator of  the future role of the NEB which is currently undergoing a modernization review initiated by the federal government.

The review’s mandate includes Indigenous engagement and public participation.

Regulators May Be Vehicles for Consultation

Gaetan Caron, former chair of the National Energy Board, said the Supreme Court decisions affirm that the regulatory body is a vehicle through which The Crown can carry out its responsibilities to Indigenous people.

“The Crown has to consult and accommodate so why not use the regulatory body to carry out those responsibilities?” he said.

Both the court cases discussed during the Calgary panel involved instances where the NEB was authorized to make the final decision on a project.

Feds Took a Different Tack With Kinder Morgan Trans Mountain Consultation

These cases differ from the legal challenge of the Kinder Morgan Trans Mountain pipeline approval, where the NEB merely made a recommendation to federal cabinet and cabinet made the final decision.

Nigel Bankes, an expert in Indigenous and resource law at the University of Calgary was not on the panel, but in a recent law faculty blog he discussed the implications of the two Supreme Court decisions on legal proceedings challenging the federal government’s approval of the Trans Mountain pipeline.

Bankes contends that in the Trans Mountain case, the federal government did not rely on just the NEB process to discharge its responsibility to consult and accommodate. Having learned from mistakes during the Northern Gateway project proposal, the federal government took supplementary steps to improve its consultation and accommodation practices.

“The federal Crown undertook further consultation through the Major Projects Management Office and, as well, appointed the Trans Mountain Pipeline Expansion Project Ministerial Panel to engage potentially affected communities close to the proposed pipeline and shipping corridors.

In addition, the federal Crown itself conducted more intense consultation and accommodation activities in conjunction with the provincial Crown,” Bankes wrote.

Bankes also contends that the Chippewa of the Thames First Nation decision is confirmation that consultation and accommodation with respect to Trans Mountain will focus on the particular application and not on past decisions with respect to that same pipeline.

While the “new project” that was before the NEB in Chippewa of the Thames was small, the same cannot be said of Trans Mountain since it involves a very significant expansion in both pipeline capacity and tanker shipments, Bankes wrote.

The B.C. government recently announced it has hired renowned lawyer Thomas Berger and will seek intervener status in the court challenges, expected to be heard this fall.

Image: Idle No More, 2012. Photo: Zack Embree

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The Arctic’s Baffin Bay and Davis Strait region is home to seals, bowhead whales, polar bears and up to 90 per cent of the world’s narwhals. The area’s marine waters also provide habitat for 116 species of fish, such as Arctic char, an important dietary staple for Nunavut’s Inuit communities.

Although the area is crucial to Inuit for hunting and other traditional activities, the federal government has approved underwater seismic blasting by a consortium of energy companies. They plan to fire underwater cannons from boats to map the ocean floor for oil and gas deposits, in preparation for offshore drilling.

The blasting, approved by Canada’s National Energy Board in 2014, is meeting fierce opposition.

A lower court affirmed the NEB decision in 2015, claiming Inuit were adequately consulted on the project — something Inuit dispute. To prevent destruction of their hunting grounds, the remote hamlet of Clyde River in Nunavut and the Nammautaq Hunters and Trappers Organization appealed to the Supreme Court of Canada, which agreed to hear the case later this year. A positive decision could halt seismic blasting and affirm the right of Indigenous peoples to decide their own future regarding resource development in their territories, which is central to the UN Declaration on the Rights of Indigenous Peoples, of which Canada is a signatory.

This case is in an isolated region. But the threat of massive development in yet another traditional territory is not an isolated case. Indigenous peoples are on the front lines of environmental change around the planet. Ever-expanding resource developments are degrading traditional territories that have sustained communities for millennia, from Arctic tundra to primeval rainforest to arid desert. They’re criss-crossed with roads, transmission lines and pipelines, and pockmarked by pumpjacks, flare stacks and other infrastructure for drilling, fracking and strip-mining fossil fuels. Most developments proceed without consent from local communities and with minimal benefit to them in terms of jobs, training and economic prosperity.

Numerous studies show that Indigenous communities usually bear the brunt of resource development, from declining water quality to destruction of traditional hunting and fishing grounds. The social consequences are devastating. Earlier this year I participated in the Canadian Indigenous Health Conference, which brought public health experts together with Indigenous elders, political leaders, youth, hunters and trappers. Many First Nations, Métis and Inuit communities’ social problems — including alcoholism, physical abuse, depression and suicide — are linked to the vacuum left when communities can no longer hunt, fish, trap, gather berries and otherwise live off their lands as their ancestors did.

Despite living in one the world’s wealthiest countries, Inuit face chronic food insecurity. Nearly 70 per cent of households in communities like Clyde River struggle with getting enough nutrition to stay healthy, compared to eight per cent for the country as a whole.

Traditional activities like hunting and fishing are critical to Indigenous communities’ food security, but they also support a holistic approach to the overall health and well-being of Indigenous peoples. A David Suzuki Foundation study on the importance of caribou hunting to First Nations in the boreal forest found “harvesting as a practice is not solely a process of obtaining meat for nutrition. With each hunt a deliberate set of relationships and protocols is awakened and reinforced. These include reciprocity, social cohesion, spirituality and the passing on of knowledge to future generations.”

Scientists fear high-intensity sounds from seismic blasting in the Arctic could adversely affect marine wildlife, exacerbating the food-insecurity crisis. Inuit hunters have observed altered migration patterns of some species, and reported horrific damage to the internal organs of seals and other animals exposed to underwater seismic blasts.

Clyde River’s resistance to big oil is classic David versus Goliath. On one side, powerful corporations with money and access to politicians. On the other, one of the world’s oldest cultures, which has survived for millennia in harmony with the environment. Former Clyde River mayor Jerry Natanine said, “Inuit do not live on the land; we are part of it. We form an indivisible unity with the Arctic environment that we are fighting to preserve for our people and our culture to survive and thrive.” 

Let’s stand with Inuit and stop seismic blasting in the Canadian Arctic.

Written with contributions from David Suzuki Foundation Ontario and Northern Canada Director Faisal Moola.

Learn more at www.davidsuzuki.org.

Image: Christian Aslund, Greenpeace

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Opposition to oil and gas exploration in the eastern arctic, around Baffin Island and the Davis Straight, may not be making headlines across the country, but it continues to grow.

Recently the Baffin Island Mayors' Forum voted unanimously to reject plans by a consortium of three multinational oil exploration companies to do seismic testing off their coasts in the Davis Straight. They hope to find evidence of oil deposits to then sell to oil companies looking for new offshore drilling projects.

The vote at the mayors' meeting is the latest in a fight by Inuit communities for control over their territory and waters as interest in oil extraction grows in the area. They are concerned that any seismic testing – and eventual oil drilling – endangers the hunting and trapping many still rely on for survival and which make up an important part of their traditional way of life. They are asking for more studies before any exploration moves forward.

“All the Baffin communities are united in this feeling,” Clyde River mayor Jerry Natanine told DeSmog Canada in an interview.

The hamlet of Clyde River, a community of 900 on the north eastern coast of Baffin Island, has been at the forefront of the fight to have the concerns of Inuit communities taken into account before any work moves forward. Both the municipal council and the Hunters and Trappers Organization of Clyde River (HTO) have passed motions, including a joint motion, against the exploration, which Natanine says represents the views of the entire community. “There's been nothing but opposition,” he said.

Seismic testing spurs controversy, concern

Seismic testing is conducted by using under-water airguns to bounce soundwaves off the ocean floor in order to determine the position of possible oil and gas deposits. A common method for underwater oil exploration, it's impact on marine mammals, including whales, and fish has been rooted in controversy. The companies wishing to conduct oil exploration in the Davis Straight have reported in their own environmental assessment that there is no cumulative impacts on wildlife and ecosystems from the sonar testing. They admit though that there is what they believe to be very short-term disruptions of marine life travel patterns due to the disturbance caused by the testing.

Seismic airgun testing infographic by Oceana.

It's this kind of disturbance, and the questions that still surround it, that are causing the most immediate concerns.

“From what we understand, it's not clear what the impact will be on sea mammals,” said Napannine. “Since we're a hunter-trapper society, this could affect how we live.”

Recent articles and reports support his concern. A 2012 study in the scientific journal Biological Conservation examined the cases of narwhals becoming entrapped in ice following seismic testing – including a case in Canada where 1,000 narwhal died. It concluded that more study should be done on how seismic testing disrupts marine mammals' travelling paths before more testing be approved. Such a a study has yet to happen.

Similar concerns have been expressed by scientists about seismic testing off Canada's Atlantic Coast. In Norway a study has shown that cod populations dropped 70 per cent following seismic testing, and didn't return for five days. And in Iceland and Scotland, there have been reports of panicked and lost pods of whales appearing in areas off their usual path.

All of this lends greater concern to the residents of Clyde River and other Baffin Island communities that seismic testing could seriously impact their livelihood and subsistence hunting by driving marine life away.

Does NEB review go far enough?

Because the area being explored falls outside of the region controlled by the Nunavut government, it is subject to a federal National Energy Board review. Opposition by community members to the seismic testing was overwhelming, as the public testimonies posted on the NEB site demonstrate.

“To think that there's any support from any communities, that is very wrong,” summed up Nigel Qaumariaq, an Inuk from Iqaluit, at the final NEB consultation in Iqaluit. “There has been moments where there's this tug and pull between modern and traditional way but I have not seen any support for this project.” Qaumariaq had attended all four community hearings held by the NEB review board.

The consultations ended in October 2013 and NEB officials cannot confirm when the board will issue its decision. While in other cases an NEB decision would then go to the federal government for final approval, because of the scope of this project, the board's decision will be the final word on the drilling, barring an appeal to the federal court.

But Baffin Island residents are concerned about the limited scope of the NEB review, which may allow for the testing to go through without taking into account the larger impacts of oil exploration and extraction in the region.

Of utmost importance is the feeling that there has been inadequate consultation by the exploration consortium with community members, and concern they are not taking Inuit Qaujimajatuqangit – Inuit traditional knowledge – into account. While a letter from the companies says that they see the integration of traditional knowledge and working with Inuit hunters and trappers as crucial, Napannine says that consultation has been extremely limited and that Clyde River residents have refused to participate in sessions or share their knowledge because of their opposition to the project going forward. 

The consortium has hired Nexus Coastal Resource Management from Nova Scotia to lead the consultation process. While Nexus was contacted for comment for this piece, they did not respond before deadline. Reports filed with the NEB by Nexus in January 2013 outline the consultation process they have undertaken, listing meetings and the concerns raised by participants.

As they point out in their report on their November/December 2012 community meetings, "There appears to be consistency in the issues of concern and the inquiries made by community participants. A number of them deal with the uncertainty of the decision making process, concern for potential effects that are based on lack of information, lack of research, and lack of engagement by managers at the local level."

Also of concern is that, as in all cases, the NEB will only focus on concerns about the project at hand. While seismic testing is of concern, just as worrisome (if not more so) is the impact of eventual oil drilling.

Napannine says he hasn't seen any evidence that oil companies would be able to deal with an oil disaster in the arctic. “There's no way they can clean up a spill here,” he says.

Communities will fight for broader environmental assessment

In response to the limited scope of the NEB, the Qiqiktani Inuit Association (QIA), which administers the land claims process for the Baffin region of Nunavut, requested that the NEB carry out a strategic environmental assessment in order to evaluate the broader impact of oil industry development in the area. Nunavut Tunngavik Incorporated, the Nunavut governing body, has also passed a motion supporting the QIA.

While the federal government has agreed to carry out an SEA, preliminary consultations just began in February and the process will take several years to complete. The NEB, in the meantime, operates separately from the SEA process, meaning oil exploration could begin before any broader assessment results are known. Driving this point home, Nexus has already sent job postings to Clyde River and other communities for work on the ships as mammal spotters starting in August 2014.

With no decision yet, and questions still swirling, Napinnine wonders how they could already be hiring. "It hasn't event gotten the go ahead yet," he said.

For Napannine and others in the region, the lack of consultation simply isn't acceptable. While he stressed that he and others are not opposed to any and all oil development, it needs to come with the appropriate safeguards. If not, the projects can't be allowed to move forward, and he says that his community and others are committed to continue the fight, whether the NEB grants approval or not.

“The people are united in our opposition,” he said.

Image Credit: Wikimedia Commons

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