Supreme Court of Canada to weigh in on seismic testing

On November 30, 2016, the Supreme Court of Canada will hear Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS), a case with wide repercussions for the Canadian arctic environment and the Inuit’s millennia-old way of life. millennium

The case arose when a Norwegian-based three-company energy consortium received approval from the Canadian National Energy Board to conduct five years of seismic testing in the Canadian arctic. Seismic testing is used to measure the presence of oil and gas underwater. Here, seismic testing would require a ship to travel across Baffin Bay and the Davis Strait, towing air guns that produce pulses of sound waves much louder than a jet engine every 13 to 15 seconds, for 24 hours a day, five month per year, for five years. The pulses of sound bounce on the seafloor and bring back information about the location of buried oil and gas deposits.

The area in which the seismic testing would occur is ecologically sensitive, containing a rich diversity of marine mammals, such as the narwhal, the ringed seal, and the bowhead whale, which live feed and migrate along Baffin Bay and the Davis Strait. Seismic testing is harmful to this marine life, as it could decrease water quality, create sensory disturbance or hearing impairments for marine mammals, disrupt migration routes, or create harmful changes to the ecosystem due to spills or accidents. Any harm to the marine life would be irreparable.

The marine mammals are also culturally vital to the Inuit population of Clyde River. Since time immemorial, this population has depended on marine mammals for its food, its economy, and its culture. There are no substitutes. Any harm to the marine life would affect the livelihood and destroy the culture of the Inuit.

Bowhead whale - photo by Kate Stafford

Bowhead Whale – photo by Kate Stafford

Despite these critical considerations, the Inuit of Clyde River lost their claim to have the approval overturned. Under Canadian constitutional law, the National Energy Board had the duty to consult with the Inuit on a project, such as this one, which affects their rights and interests. However, even though the Inuit were not permitted to formally participate in the decision-making process or even to present expert evidence to test the consortium’s claims that no harm would be caused to the marine mammals, the Canadian courts found that the duty to consult had been discharged. The courts suggested that should any deficiencies or evidence of harm arise at the operational phase of the project, further consultations could cure these problems. But this response misses the larger point: once seismic testing begins, it will be too late to save the marine mammals. Consultation at that point is meaningless.

The hearing before the Supreme Court of Canada offers one last chance to overturn the approval and ensure that the well being of marine mammals is placed first. The case will become an important precedent to direct how future oil and gas exploration is conducted in the arctic and whether the potential harm to the natural environment is properly weighed. The case will also be an important precedent in determining how the Canadian government is to consult with the Inuit and other Aboriginal populations on projects that affect the natural environment on which the Aboriginals have relied on for millennia.

This post is largely drawn from the factum of the Inuit of Clyde River in the case. For more details, see http://scc-csc.ca/WebDocuments-DocumentsWeb/36692/FM010_Applicants_Hamlet-of-Clyde-River-et-al.pdf

Post Author: Nicolas Rouleau is an appellate lawyer in Toronto, focusing mostly on the constitutional rights of minorities. He recently won the Association des parents de l’école Rose?des?vents v British Columbia (Education) case at the Supreme Court of Canada (http://www.canlii.org/en/ca/scc/doc/2015/2015scc21/2015scc21.html), a case expanding the educational rights of French-Canadians.