With little to show for three months of meetings and letter-writing, Inuit leader Okalik Eegeesiak called a lawyer she knew: Could the courts stop scientific tests that might scare away animals her people rely on?
She was referred to Davis LLP, a firm versed in aboriginal law, and two lawyers in its Toronto office, David Crocker and Peter Jervis, agreed to take the case. Neither had ever been to Nunavut.
That was on July 23. Last Sunday, just 16 days later, a judge in Iqaluit granted an injunction against seismic testing in Lancaster Sound, gateway to the Northwest Passage and a body of water with so much wildlife that Ottawa may make it a conservation area. It is a landmark ruling for the Inuit, the first legal recognition of their cultural territorial rights in the region. "It's a big victory for the Inuit, not just in the High Arctic but across Nunavut," says Ms. Eegeesiak, president of the Qikiqtani Inuit Association.
But the ruling isn't a precedent, observers say. It follows a series of decisions since 1997 that have codified the rights of first nations to a seat at the negotiation table. "What [the series of cases]does is say to the Crown, 'Look, you can't simply look at the treaty and present a technical defence. You've got to speak with us and see what our concerns are, and see how we can minimize and address them in a meaningful way,' " says Maria Morellato, a Vancouver lawyer experienced in aboriginal law.
The 65-day Eastern Canadian Arctic Seismic Experiment is financed by the German government and is being carried out, with the blessing of the federal and territorial governments, by the Alfred Wegener Institute for Polar and Marine Research. Five communities with about 2,500 residents complained about the air-gun blasts to be used by RV Polarstern, the institute's research ship. Three of them were told about the project last year, but it was only on April 4 that Ms. Eegeesiak learned what was happening. She was concerned; similar tests had been done with dynamite in the 1980s, and "whales didn't come back for years."
Her association, which represents Inuit in the region, also suspected the testing would be used for oil and gas exploration (something the Wegener Institute and Prime Minister Stephen Harper denied this week). It expressed concern to the Nunavut Impact Review Board, which assesses the affect of development, and public meetings were held, as were discussions with Natural Resources Canada, a partner in the research.
All to no avail. "As the process went along," Ms. Eegeesiak says, "we felt our concerns and issues were ignored."
After appealing to both the territorial and federal governments, the association contacted the lawyers and announced July 30 it was launching legal action. This was before the Polarstern had set sail from Iceland.
"We wanted to let them know we were going to do this," Mr. Crocker says, "so they could decide whether to send the ship. … They sent the ship."
According to Wegener Institute spokesman Ralf Röchert, "stopping the ship would have meant to stop the whole expedition, including all parts which would not be affected by the injunction."
'MORE TOKEN THAN REAL'
The legal argument for the injunction relied on the Supreme Court of Canada's 1997 Delgamuukw decision, which acknowledged an inherent aboriginal right to land, plus two rulings it sparked: Haida (2004) and Mikisew (2005), which require the Crown to consult first nations even if not required to do so by a treaty.
This time, Mr. Crocker says, Madam Justice Sue Cooper of the Nunavut Court of Justice ruled that the federal government did not do enough to involve local communities in its decision-making: "The consultation … done here was, um, more token than real."
Judge Cooper also took the "remarkable" step of giving testimony from Inuit elders equal weight with that of researchers and government officials, says Shin Imai, a professor at York University's Osgoode Hall Law School. "The decision rises to the challenge of bridging European scientific knowledge and indigenous knowledge," he says, adding that he feels it's on "solid legal ground."
The Polarstern, which costs about $73,000 a day to operate, is now off Greenland, although it's unclear how worthwhile its research will be without the seismic testing. Mr. Röchert says the two days of underwater blasts scheduled for Lancaster Sound were "quite fundamental to answer the scientific questions and objectives of the expedition."
The battle isn't necessarily over. If the government chooses to fight, Ms. Eegeesiak's association could be on the hook for the cost of scrubbing the tests. Natural Resources Canada declined to comment this week, but with an appeal unlikely before the Polarstern heads home, Ottawa may choose to stand pat.
Ms. Eegeesiak, who met Liberal Leader Michael Ignatieff in Iqaluit on Thursday, certainly hopes so. "I think they've heard that consultation is an important prerequisite to doing business up here."