Stockwoods lawyers Nader Hasan, Justin Safayeni and Pam Hrick represented the Hamlet of Clyde River in its successful appeal before the Supreme Court of Canada. In a decision released today, the Supreme Court agreed with the appellants that the Crown had failed to fulfill its duty to consult the Inuit of Clyde River prior to the National Energy Board (NEB) issuing an authorization for seismic testing in the waters off the coast of Baffin Island. Seismic testing could devastate the Inuit’s treaty rights to hunt and harvest marine mammals in these waters. In the result, the Court quashed the NEB’s authorization.
The Court’s decision clarifies several aspects of the duty to consult in the context of a regulatory approval process. First, there is no distinction between the NEB and the Crown for the purposes of determining when the duty to consult is triggered: once it is accepted that a regulatory agency, like the NEB, exists “to exercise executive power as authorized by legislatures, any distinction between its action and the Crown action quickly falls away.” Second, while Crown may rely on a regulatory body like the NEB to fulfil part or all of its duty to consult in some cases, where that occurs it “should be made clear to the affected Indigenous groups.” Third, regulatory agencies with the authority to decide questions of law (like the NEB) must assess whether the degree of consultation that occurred was adequate and normally provide affected Indigenous groups with explicit reasons outlining this assessment. If an agency determines consultation was not adequate, then project authorization cannot proceed.
In this case, the Supreme Court found that the NEB’s process was “significantly flawed”, falling well short of discharging the Crown’s duty to consult. There was no oral hearing. No consideration was given in the NEB’s approval to the source of the indigenous rights at issue (here, a treaty). Limited opportunities for participation and consultation were made available to the Inuit, and the Inuit were provided no participant funding. The project proponents were unable to answer basic questions from the Inuit about the effect of the proposed testing on marine mammals. As a result of the Inuit’s limited participation, the accommodations provided also fell short, given their constitutionally protected rights and the potentially devastating impact of seismic testing on those rights.
You can read the appellants’ written argument here.
