Nunavut seismic testing appeal could help define Canada's duty to consult Indigenous groups

An upcoming Supreme Court of Canada case involving a small Inuit community's battle against seismic testing has the potential to redefine the scope of the Crown's constitutional duty to consult Indigenous groups. 

For the past two years, Clyde River, Nunavut, has been fighting to overturn a National Energy Board decision to allow a group of companies to conduct seismic testing in Baffin Bay and Davis Strait. 

They argue the loud guns used in the test will frighten away or even kill the marine mammals Inuit rely on. 

But, this month groups from across Canada laid out their arguments for how this case could affect Indigenous people who live far beyond Nunavut's borders. 

"The oil and gas regime in Arctic waters takes development for granted and adds Inuit consultation as an afterthought," writes the Makivik Corporation, in its 10-page factum. 

"The honour of the Crown requires more."

Under common law and reinforced by Canada's Constitution Act, the government is obliged to consult and accommodate Inuit when development projects threaten to infringe upon rights guaranteed to them through treaties and land claims.

'Unilateral decision-making' versus respect

Makivik, which represents Inuit in Nunavik, a region of Northern Quebec, is one of several Indigenous groups intervening in the case. 

Each suggests a lack of adequate consultation puts Canada's 'nation-to-nation' relationship with Inuit, Metis and First Nations people at risk. 

The Chiefs of Ontario stated in their factum that the Crown's original relationship with First Nations was based on "mutual autonomy and respect."

"Over time, that promise has given way to the very opposite: unilateral decision-making by the Crown in regard to natural resources, fed by an attitude of paternalism and the policies of assimilation." 

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Another Indigenous intervener, the Inuvialuit Regional Corporation, writes that Inuit worked for years on land claims settlements to ensure rights are "diligently protected and pursued," rather than becoming "simply a file within government bureaus and corporate headquarters." 

That's why the regional Inuit organization hopes the court will better define the scope of the duty to consult using the elements of "free, prior and informed consent" outlined so thoroughly in the United Nations Declaration on the Rights of Indigenous Peoples. 

While the Federal government has said it supports that declaration "without qualification," the document has not yet been implemented and thus remains more political aspiration than regulation. 

When does the Crown need to be directly involved?

Central to the case is the argument over whether the National Energy Board, an independent Federal regulatory tribunal, can fully discharge the Crown's duty to consult. 

As it stands, the constitutional responsibility to consult can be 'delegated,' in a sense, to tribunals like the National Energy Board. Put another way, the National Energy Board can, in some cases, act as a kind of go-between, requiring companies applying for licenses to consult directly with Indigenous groups and also listening directly to local concerns.

A 2015 federal court ruling on the Clyde River case determined that, "the nature and the scope of the process afforded by the [National Energy] Board was sufficient to uphold the honour of the Crown."

"Consultation [does not] equate to a duty to agree; what is required is a commitment to a meaningful process of consultation. Put another way, perfect satisfaction is not required," wrote judge Eleanor R. Dawson.​

Clyde River appealed the federal court's decision.

It says this situation is so critical and the potential for non-compensable damage to Inuit is so high in this case, the Crown must be directly involved in consultations and cannot delegate that duty. 

The hamlet's lawyers say Inuit organizations "repeatedly requested" the federal government, through the Department of Aboriginal and Northern Affairs (as it was then called) become involved in consultations. 

In particular, they wanted the government to wait to approve the seismic survey until Inuit could undertake a strategic environmental assessment to better understand how the tests could affect them.

Indigenous groups need better resources for consultations

Nunavut Tunngavik, Inc., another intervener in the case, argues the Minister's response "was too delayed and dismissed the Inuit's request out of hand."

"The value of strategic environmental assessment before oil and gas development is widely acknowledged," according to Makivik, although the National Energy Board "lacks the power to carry one out." 

In broader terms, Inuit organizations are also concerned that Indigenous groups are too often on unequal footing during the consultations process, because they lack technical and financial support. 

Decision-makers need to take into account "the availability of funding to the Aboriginal group where it reasonably requires resources to participate in additional consultation," Nunavut Tunngavik states. 

Providing adequate support to Inuit and providing detailed reasoning for why and how the duty to consult will also "discourage marginal legal challenges" and save the government time and money, argues the group. 

Don't make process too complicated, urge provinces

Meanwhile, other governments and agencies worry the court's decision could make the consultation process unnecessarily complicated and impractical. 

"Where a tribunal is properly authorized and engages in an honourable and respectful process that otherwise satisfies the Crown's consultation obligations, there is no need for additional Crown consultation or review," stated the Attorney General of Ontario in its intervener factum. 

The court's decision should "encourage flexibility and responsiveness to the facts, rather than consist of a fixed checklist of procedural requirements," it argues. 

The Attorney General of Saskatchewan outlines a similar argument in its factum as intervener, cautioning against introducing "unnecessary steps into the process," which could "inadvertently undermine Saskatchewan's approach."

Whatever the final decision in the case, the Nunavut Wildlife Management Board likewise hopes it won't be adversely affected. 

"Most tribunals would be very concerned from a staffing and financial perspective if the Crown were able to delegate its duty to consult to the tribunal."

Catering consultations to local needs

Ontario writes the duty to consult is "profoundly important" to reconciliation and the court's decision "may encourage tribunals and government to provide appropriate training and education for tribunal members and staff."

Like several Indigenous groups involved in the case, the province suggests consultations should cater to specific needs including through the "adequacy of timelines; resources and opportunities for review of relevant information; the location of meetings and face-to-face interaction." 

The Board, argues Saskatchewan, is best equipped to make these decisions about consultations and as a specialist body may indeed have a better understanding than the Crown. 

The case, which will be heard at the same time as a case brought by Chippewas of the Thames First Nation, begins Nov. 30 in Ottawa.