Supreme Court backs one Indigenous community’s energy battle, denies another

One Indigenous community has lost its Supreme Court battle against the federal government’s approval of energy projects while another has won in a surprise decision Wednesday.

Clyde River, in Nunavut, had filed a challenge arguing that the federal government had not adequately consulted them on plans to conduct seismic testing in the Arctic waters off Baffin Island; while Chippewa of the Thames, in southern Ontario argued they had not been sufficiently consulted on plans to reverse the flow of an oil pipeline that would bring millions of barrels of oil from the Alberta oilsands to eastern Canada.

In a two-part decision, the Supreme Court ruled the federal government had consulted properly in the Chippewas of the Thames case, but not in Clyde River.

“The [National Energy Board] reviewed the written and oral evidence of numerous Indigenous interveners and identified, in writing, the rights and interests at stake,” the Supreme Court decision on Chippewas of the Thames states. “It assessed the risks that the project posed to those rights and interests and concluded that the risks were minimal.”

In the Clyde River case, the Supreme Court quashed the NEB’s authorization of seismic testing, saying in part: “The process provided by the NEB did not fulfill the Crown’s duty to conduct the deep consultation that was required here.”

The decision will be instructive to the government and to energy companies looking to develop land near Indigenous communities in the future.

Last year, both communities threatened to stage protests to stop the projects if the Supreme Court dismissed their appeal. Chippewas of the Thames band councillor Myeengun Henry told VICE News last week his community would carefully consider whether to stage protests if the decision went against them.

In Clyde River to the north, Canada’s energy project review mechanism the National Energy Board (NEB) greenlit seismic testing in the ocean waters near the community — raising concerns from local hunters that the loud blasts from the oil exploration would alter migration routes for whales and other marine mammals, preventing them from traditional hunting practices.

In November 2015, then-mayor of Clyde River Jerry Natanine told VICE News his community would be willing to block the seismic testing vessels. “You know the seismic route is gonna be more than 12 miles offshore and that’s pretty far away to go by boat, but that would be our next step,” he said.

And in Chippewa of the Thames in the south, the energy board approved an application by Enbridge to reverse the flow of Enbridge’s Line 9 to carry oil sands bitumen through the First Nation’s territory, presenting what community leaders said was a risk to their water.

Clyde River lawyer Nader Hasan said he hoped the decision was “a wake up call” for Trudeau’s government, adding that if the Canadian government had accepted the UN Declaration on The Rights of Indigenous Peoples, especially their right to free, prior and informed consent, the case would not have had to go all the way to the Supreme Court. While the duty to consult is not a veto, he said consent of Indigenous groups is required.

He said the decision underscored the need to revamp the NEB process. “The National Energy Board never met an energy project it didn’t like,” Hasan said.

As for Chippewas of the Thames, who lost their appeal, he said, “We stand in solidarity with them today.”

Former Clyde River mayor Jerry Natanine, meanwhile, said his community was “fighting for our way of life” and they were “joyful and happy” about the outcome.

“Today, we’re on the right side of justice,” he said. “Today the Supreme Court of Canada agreed with us, and for that I am so grateful, I don’t know what to say.”