Standing – Duty to Consult – NEB Geophysical Operations Authorization
In this decision, the Inuit hamlet of Clyde River, located on Baffin Island, Nunavut (“Clyde River”), applied for judicial review of the NEB’s decision granting a Geophysical Operations Authorization (“GOA”). The NEB granted the GOA to TGS-NOPEC Geophysical Company ASA (“TGS”), Petroleum Geo-Services Inc., (“PGS”) and Multi Klient Invest (“MKI”). Under the GOA, TGS, PGS and MKI could undertake a two-dimensional offshore seismic survey program in Baffin Bay and the Davis Strait (the “Project”) for up to five years. The NEB granted the GOA pursuant to section 5(1)(b) of the Canada Oil and Gas Operations Act, RSC 1985, C. O-7 (the “COGOA”).
The application for judicial review by Clyde River was supported by Jerry Natanine, a resident of Clyde River, and the Nammautaq Hunters & Trappers Organization – Clyde River (collectively, the “Appellants”).
The population of Clyde River relies on the harvest of marine mammals, including the bowhead whale and narwhal for food security, and for their economic, cultural and spiritual well-being. The bowhead whale and the narwhal are respectively identified as “threatened” and “Special Concern” by both the Species At Risk Act, SC 2002, c. 29 (the “SARA”) and the Committee on the Status of Endangered Wildlife in Canada (the “COSEWIC”).
The following issues were raised on appeal:
(a) Did Clyde River have standing to bring the application for judicial review?
(b) Was the Crown’s duty to consult with the Inuit in regard to the Project adequately fulfilled?
(c) Did the NEB err by issuing the GOA, including:
(i) Whether the NEB’s reasons were adequate;
(ii) Whether the NEB reasonably concluded that the Project is not likely to result in significant adverse environmental effects; and
(iii) Whether the NEB failed to consider Aboriginal and Treaty rights; and
(d) Was the Crown obliged to seek the advice of the Nunavut Wildlife Management Board (“NWMB”)?
Standing
As a preliminary issue, the Attorney General of Canada (the “AG”) raised whether Clyde River had standing to challenge the decision. The AG submitted that the Appellants were not directly affected by the NEB’s decision, and that Clyde River and the other appellants had no standing to pursue claims based on Aboriginal and treaty rights.
The Court noted that the Appellants were raising serious justiciable issues about the NEB’s decision, and whether the Crown’s obligation to consult was met. The Court further noted that TGS, MKI, and PGS all consulted with the Appellants throughout the consultative stage of the application.
The Court determined that the Appellants had standing to bring the application noting that a preponderance of factors militated toward granting standing. Therefore the Court proceeded to consider the remaining three issues.
Duty to Consult
The Appellants submitted that the Crown was obligated to consult with the Inuit as a result of the NEB’s receipt of the GOA application. The Appellants submitted that the duty to consult was at the high end of the consultative spectrum, requiring meaningful attempts to engage the Inuit in decision-making process, given the impact on marine mammals. The Appellants submitted that the Crown took virtually no action to discharge its duty to consult.
The AG conceded that Canada owed a duty to consult, but argued that it fulfilled such duty to consult at the mid-range of the consultative spectrum, relying on the consultative efforts of the project proponent. The AG also noted that the terms and conditions of the GOA reasonably accommodated the Appellants’ concerns regarding potential impacts on harvesting rights.
The Court held that the Crown had a duty to consult, and that the NEB was the body mandated to engage in a consultative process. The Court also noted that this was consistent with the Supreme Court of Canada’s prior decision in Taku River Tlingit First Nation v British Columbia (Project Assessment Director), 2004 SCC 74, which upheld the Crown’s reliance on environmental assessment processes to fulfil the duty to consult.
With respect to the proper point on the spectrum of consultation required, the Court noted that the Appellants claimed they were owed consultation on the upper range of the spectrum, while the AG conceded only a mid-range level of consultation. The Court found that the appropriate range of consultation was fact specific, and depended in part on the strength of the right being asserted. In this case, the aboriginal right in question was acknowledged by the Crown through the Nunavut Land Claims Agreement which provides the right for the Inuit to continue hunting, fishing and harvesting in the Nunavut settlement area. Therefore, citing both the strength of the right claimed, and the potential environmental effects noted by the NEB, the Court determined that a high level of consultation was warranted with respect to the GOA.
The Court summarized the arguments of the Appellants as twofold:
(a) First, that the Crown rejected their request for a Strategic Environmental Assessment; and
(b) Secondly, that the public participation granted by the NEB was inadequate, and not a proper substitute for formal consultation.
With respect to the first argument, the Court found that consultation did not require a Strategic Environmental Assessment. The Appellants failed to show that the NEB’s reasons for rejection of the Strategic Environmental Assessment were unreasonable, and that the ongoing terms and conditions in the GOA for monitoring and reporting effectively ameliorated any uncertainty with respect to environmental effects in the future.
The Court held that the Crown had adequately fulfilled its duty to consult with the Inuit in regard to the Project, citing ongoing meetings between the project proponents and aboriginal communities from 2011 onward, and noting the communities’ active participation including several recommendations from aboriginal groups being incorporated into monitoring and surveying. The Court also held that this duty had in part been fulfilled through the environmental assessment process, which under the now repealed Canadian Environmental Assessment Act, SC 1992, c 37, required the NEB to consider an “environmental effect” under section 2(1). The Court noted that this definition included the effect of any change that a project may cause in the environment, including “the current use of lands and resources for traditional purposes by aboriginal persons.” The Court also found that the terms and conditions were set in such a way for Aboriginal concerns to be expressed throughout the lifecycle of the project, requiring regular environmental assessment updates, and ongoing meetings with potentially affected communities.
No Error in Reasons for Issuing GOA
The Appellants submitted that the NEB gave no reasons for its decision to issue the GOA. The Court ruled that this argument was without merit and therefore dismissed it, noting that the NEB’s reasons were set out in both the environmental assessment and in the terms and conditions of the GOA.
The Court found that the NEB did not err in its reasons in issuing the GOA.
Advice of the NWMB Not Required
The Appellants argued that the Crown breached the Nunavut Land Claims Agreement, as Article 15.3.4 required the Crown to consult with the NWMB if it would “affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area.”
The Court determined that the Crown had no obligation to seek the advice of the NWMB, finding that the purpose of the NWMB, as set out in the Nunavut Land Claims Agreement, was to be the regulator of access to wildlife, and to make wildlife management decisions. The Court characterized the scope of the NWMB’s powers in this capacity as related to wildlife management, and not to decisions such as the issuance of a GOA. Such decisions were therefore not within the purview of the NWMB.
Result
As the Court dismissed each of Clyde River’s three substantive grounds of appeal, the Court dismissed the appeals with costs.
