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indigenous consultation

The Supreme Court of Canada building is seen in this file photo.Sean Kilpatrick/The Globe and Mail

The Supreme Court of Canada affirmed Wednesday that Indigenous people do not have a veto over resource projects affecting their traditional territory, even as it quashed a regulatory permit for an oil-exploration program that Inuit residents of Baffin Island feared would damage their hunting rights.

Residents of Clyde River – population 1,100 – fought an uphill battle against a consortium of multinational oil service companies that planned to conduct seismic testing to assess the oil and gas potential of offshore sites. The top court agreed that the regulatory agency had failed to adequately assess the risk posed by the seismic testing to the community's treaty rights to hunt bowhead whales, narwhal, seals and polar bears.

In a companion ruling, the Supreme Court rejected a challenge by a First Nations community that argued the government had failed to properly consult and accommodate its concerns when the regulatory agency approved Enbridge Inc.'s project to reverse the flow of its existing Line 9 pipeline through Ontario to Quebec.

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In dismissing the suit brought by the Chippewas of the Thames First Nation, the nine justices unanimously ruled that Indigenous communities do not have the final say over proposed resource projects that affect their traditional territory but that government and its regulatory agencies face a high bar in ensuring their rights are fully considered and accommodated.

The decisions from the top court make it clear that when assessing projects, the National Energy Board must clearly and explicitly consult with Indigenous groups, give them a full opportunity to participate in the process and accommodate their rights where the projects would pose some risks. However, those rights must be balanced against "competing societal interests," the decision said.

"This does not mean that the interests of Indigenous groups cannot be balanced with other interests at the accommodation stage," Justices Russell Brown and Andromache Karakatsanis jointly wrote in the decision. "Indeed, it is for this reason that the duty to consult does not provide Indigenous groups with a 'veto' over final Crown decisions."

The Liberal government is overhauling the National Energy Board Act and promising to more fully engage Indigenous communities as partners in resource development. However, the government is promising only to "seek" to acquire their free, prior and informed consent over projects that affect their traditional lands; aboriginal leaders argue the Canadian government should acknowledge their right to consent.

At a press conference on Parliament Hill, former Clyde River mayor Jerry Natanine was visibly elated by the decision. "We've been saying justice is on our side because we are fighting for our lives, we are fighting for our way of life, our culture, our hunting and gathering culture," he said.

Officials from the companies had visited the community but were unable to answer key questions that Inuit leaders had about the impact on marine mammals of the sound waves from the loud air gun used in seismic testing. In answering the questions later, the NEB provided a 3,926-page document largely in English that residents found nearly impossible to download over slow-speed Internet.

"To put it mildly, furnishing answers to questions that went to the heart of the treaty rights at stake in the form of a practically inaccessible document dump months after the questions were initially asked in person is not true consultation," the justices said.

Mr. Natanine said the people in his community do not reject development but want to be treated as full partners. If the companies seek to renew the seismic permits, Clyde River would be willing to talk to them.

The former mayor said he had initially demanded $10-million from the proponents. "They laughed at me," he said. Having had a better chance to assess the operations through the court process, his community would now be demanding more, he added.

A spokesman for one of the consortium partners, TGS-Nopec Geophysical Co. of Norway, said it was too early to say whether they would seek reauthorization of the permit, which would entail deeper consultations and accommodation with the Clyde River residents.

In the Chippewas of the Thames case, the nine justices concurred that the government was acting legally in delegating the duty to consult to the National Energy Board, and that the board had given full participation to the First Nations whose treaty rights might be affected.

"We find that the NEB sufficiently assessed the potential impacts on the rights of Indigenous groups and found that the risk of negative consequences was minimal and could be mitigated," the justices wrote. As well, they noted, the NEB imposed conditions on Enbridge that were, in part, aimed at mitigating risks to the rights of Indigenous communities.

"The Chippewas of the Thames are not entitled to a one-sided process, but rather, a co-operative one with a view towards reconciliation. Balance and compromise are inherent in that process."

Enbridge has already started operation of Line 9, which has the capacity to deliver 300,000 barrels a day of western crude to Quebec markets.

The First Nations community complained that it had never been consulted when the pipeline was built in 1976. But the court concluded the current duty to consult "is not the vehicle to address historical grievances."

Kinder Morgan Canada’s president says he’s willing to meet with B.C.’s Greens and NDP on the Trans Mountain pipeline expansion. But Ian Anderson says no further concessions are planned on the $7.4-billion project.

The Canadian Press

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