Date set for Clyde River's appeal to Supreme Court over seismic testing

Clyde River's date in the Supreme Court to challenge seismic testing is set, in a case largely hinging on the constitutional duty to consult with Canada's Aboriginal Peoples.

Case to be heard Nov. 30 along with Ontario Enbridge pipeline case

Clyde River's date in the Supreme Court is set, in a case largely hinging on the constitutional duty to consult with Canada's Aboriginal Peoples. (Sean Kilpatrick/The Canadian Press)

Lawyers representing Clyde River, a hamlet of fewer than 1,000 people on Baffin Island, will argue their appeal before the Supreme Court of Canada on Nov. 30 to stop seismic testing off the community's shores.

Simultaneously, the Supreme Court will also hear arguments from the Chippewas of the Thames First Nation – who are appealing a plan by Enbridge Pipelines to run a line through southern Ontario to Quebec to move oilsands crude from Western Canada – in a case which will largely focus on the constitutional duty to consult with Canada's Aboriginal Peoples.

"Whenever so-called development projects have the ability or potential to impact indigenous rights, there has to be adequate Crown consultation," said Nader Hasan, the lawyer representing Clyde River.

"The Supreme Court has recognized time and time again that this very important body of law [of the Crown's duty to consult with indigenous groups], is a necessary component of the reconciliation between Canada and First Nations. It's something the Supreme Court takes very seriously."

In August, Clyde River lost its fight in the Federal Court of Appeal to block seismic testing off its shores. They sought a judicial review of a testing permit issued by the National Energy Board to a consortium of Norwegian seismic testing companies. They argued, in part, the loud underwater air blasts used to check for oil would scare off marine mammals in the area – a vital food supply for the remote Arctic community.

The judge in that case ruled the board had indeed fulfilled its duty to consult with Inuit groups. She added that consultation doesn't always mean agreement.

Testing postponed again

Since then, former Clyde River mayor Jerry Natanine – who is still leading the fight – says he's learned more about the methods of seismic testing and is even more concerned.

"They have been seismic testing in Greenland for several years now, and a ship that is seismic testing in Greenland is the same one that would do the same here," Natanine said.

"We are hearing that animals would disappear in those areas. You can't see any whales and seals near those ships. We've also learned from the fishing industry that turbot are moving away from the seismic testing areas. We are afraid of these things as we come to learn the truth."

During the battle in the Federal Court of Appeal, the consortium of seismic testing companies – TGS and PGS – decided to postpone testing until the 2016 shipping season

A spokesperson for PGS says the consortium will still hold off testing for the 2016 season. This will be the third time they have postponed testing since their five-year permit was issued in 2014.

"But we do not agree at this point to delay the project throughout the remaining process if the process extends beyond the 2016 season," said Bard Stenberg, PGS's vice president of corporate communications.

"We will consider the request again in 2017 if the process is ongoing."