Inuit leaders applaud landmark Supreme Court ruling

The representatives of Nunavut Inuit are excited about Clyde River's big win at the Supreme Court - even if they're still not sure exactly what it will mean for future consultations.

'I can't believe this has happened,' says Aluki Kotierk, president of Nunavut Tunngavik

Inuit activist Jerry Natanine smiles after the Clyde River Inuit blocked seismic testing that they say would have killed marine mammals in the area, but he said he was disappointed the cause didn't get more support from Inuit organizations. (Sean Kilpatrick/Canadian Press)

"Wow." "Hallelujah." "This is amazing."

When word that Clyde River had won a landmark Supreme Court case on Wednesday spread to Inuit leaders, their reactions ranged from dancing to praying.

"I'm just thinking, this was a good day," said Aluki Kotierk, the president of Nunavut Tunngavik Inc. "I can't believe this has happened."

The spotlight was on Clyde River alone and its impressive legal feat. As hours passed, the groups began to wonder about the implications this ruling could have on future development projects across Inuit Nunangat.

Consultation 'inadequate and fell short'

In a unanimous decision, the Supreme Court of Canada quashed the National Energy Board's earlier authorization of seismic testing in Baffin Bay and Davis Strait.

"The consultation and accommodation efforts in this case were inadequate and fell short in several respects," justices Karakatsanis and Brown wrote.

The decision relied on three elements to support this assertion: the National Energy Board didn't consider the impact of the proposal on the treaty rights of Inuit; people in Clyde River did not understand the NEB was acting on behalf of the Crown; and, most importantly, "deep consultation" was required but not delivered.

"This will have a lot of implications in terms of moving forward," said PJ Akeeagok, president of the Qikiqtani Inuit Association.

PJ Akeeagok, president of the Qikiqtani Inuit Association, said it will take time to unpack the implications of the ruling. (Steve Hossack/CBC)

But Akeeagok and Kotierk still aren't sure exactly what those implications will be.

Unpacking the decision

The Supreme Court decision laid out several reasons describing how Clyde River wasn't properly consulted in this case, but the decision doesn't create simple guidelines for how to properly consult with a community.

"Each case must be considered individually," the justices wrote, explaining that different projects will require a different level of consultation depending on "the strength of the Aboriginal claim, and the seriousness of the potential impact on the right."

Inuit organizations say it will take time to unpack the decision and understand how it can be applied in the future, but the Clyde River case highlights some consultation issues they don't want to see repeated.

In the Clyde River case, the companies looking to conduct seismic testing held several community meetings, but failed to answer even basic questions about the environmental effects of the process.

"I was so angry at that meeting in Clyde River," said Jerry Natanine, the former mayor of Clyde River and key figure behind the lawsuit.

Akeeagok agreed: "You can't just come, as a consultant, talk and then put a checkmark."

Lack of translation a problem

Following those meetings, the NEB suspended its assessment in May 2013.

A few months later, the companies filed a 3,926-page document in answer to those questions — but the vast majority of the massive data dump was not translated into Inuktitut.

"You can't send 4,000 pages of documents to a community and assume a unlingual [Inuk] is going to understand the response to the question," said Akeeagok. "There has to be adequate interpreters [and] translations of documents when you're presenting your issues."

Aluki Kotierk, president of Nunavut Tunngavik Inc., said there are many barriers for Indigenous groups to meaningfully participate in regulatory processes. (Kieran Oudshoorn/CBC)

Kotierk agrees, saying "trying to sift through all the technical documentation" is difficult even when they are written in a person's first language.

"There's so many barriers. There's so many different layers to the difficulties that people face to be able to participate in something like this," Kotierk added.

The Supreme Court's decision highlights the fact that Inuit did not receive funding to properly formulate arguments.

IRC was intervener in case

The Inuvialuit Regional Corporation (IRC) was an intervener in the case, and welcomed the Supreme Court decision.

Duane Smith, chair of the Inuvialuit Regional Corporation, said the ruling sends a clear message about the duty to consult Indigenous people at all stages of any regulatory process. (Mackenzie Scott/CBC)

The organization, which represents Inuvialuit under the Inuvialuit Final Agreement, said the case made it clear that the duty to consult and accommodate Indigenous rights exists from start to finish in any regulatory application process.

"I'm hoping that this makes it a lot clearer not only to industry but to the National Energy Board and respective federal environmental processes about what is required and expected of them now when it comes to consultation," said Duane Smith, IRC chair.

Natanine still 'disappointed' in leadership

Despite being the underdog, Natanine says he always believed Clyde River would triumph in this case — even when the territory's leadership didn't step up to help.

"I'm disappointed in them," Natanine said of NTI and QIA's initial response to the case.

"From the beginning when we wanted to appeal it we were looking for funding and it was over $30,000 to put in the appeal. We had to have a lawyer to do this and that cost more money," he said.

He wanted that money to come from Inuit leaders; instead, it came from Greenpeace.

Akeeagok said QIA "provided financial support right up until the appeals portion, as well as the political support."

Natanine said that although it's true QIA provided some support, those funds were "nominal."

In a post to their website Thursday morning, QIA said since 2012 they spent nearly $120,000 in direct funds for Clyde River's legal fight, including $40,000 in court costs, $57,509 on workshops and consultations for the community, and $12,165 in travel costs.

As for NTI, Kotierk said the decision not to fund the court case predates her time in office, but she wonders if NTI's own legal battle might have tied up its resources.

"But I hope that for future, that NTI is fully involved in issues that are raised by Inuit and that it doesn't discourage Inuit to continue to raise their concerns."

With files from Jordan Konek, Mackenzie Scott