This recent judgement should be noted for how it may redefine “meaningful consultation” in the North.

Natural Resources Canada (NRCan) concluded an agreement with the German Federal Institute of Geoscience to carry out geological seismic testing in Lancaster Sound, Jones Sound and North Baffin Bay, in a project called the “Eastern Canadian Arctic Seismic Experiment” (ECASE). Testing was to begin on August 9, 2010 and continue for approximately 65 days.

The Qikqiktani Inuit Association (QIA), representing the Inuit of the Qikqiktalik region of Nunavut - an organization designated by the Nunavut Land Claims Agreement (NLCA) of 1993 - had concerns about the lack of consultation of the local population and about the project’s potential impact on marine mammals (including whales, narwhals, beluga whales, seals, walrus and polar bears). The QIA expressed these concerns to the Nunavut Impact Review Board (NIRB), a body created under the NLCA and tasked with reviewing project proposals to determine their ecosystemic and socio-economic impacts.

The NIRB issued a screening report in May 2010 indicating that the project could proceed, with terms and conditions, and that no review was required. The conditions required NRCan to conduct meaningful consultations in the five Northern communities that the project might affect. NRCan held such public meetings in May and June 2010 and reported to the Territorial Minister on those consultations, at which community members expressed concerns about the testing and its effects on animals, based on past experience.  

Despite two changes to the project proposal made after the meetings, the QIA continued to express concerns about it. The Territorial Minister shared those concerns, of which the QIA only became aware when a letter from him was sent to the QIA in error. The QIA also expressed its concerns to the federal Minister responsible. Nevertheless, the required research license was issued to NRCan in July 2010. QIA applied to the Nunavut Court of Justice for an interlocutory injunction to stop Canada from conducting the seismic testing in the waters of North Baffin Island, or, alternatively, to suspend or quash the research license issued by the Commissioner of Nunavut permitting that testing.

Madam Justice Sue Cooper applied the test for injunctive relief set forth in RJR MacDonald Inc. v. Canada, [1994], requiring: 1) a serious issue to be tried; 2) irreparable harm to the petitioner if the injunction was not granted; and 3) the balance of convenience in favour of the petitioner. On the first point, the Court held that the government’s duty to consult with the Inuit regarding the ECASE project arose when the Crown had knowledge of the potential existence of Aboriginal right or title and contemplated conduct that might adversely affect it. The duty extended not only to the process of treaty making but also to treaty interpretation, and it did not end when a treaty was settled (see Haida Nation v. British Columbia (Minister of Forests), [2004]; Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), [2005] ). Although, as Canada argued, the NIRB screening process set out in the NLCA was a consultative process agreed to by the parties, the law was complex and evolving as to the extent to which a consultation process set out in a treaty would be seen to encompass the duty to consult.

The recent Yukon Court of Appeal decision in Little Salmon/Carmacks First Nation v. Yukon (Director, Agriculture Branch, Department of Energy, Mines and Resources), 2008 (now under appeal to the Supreme Court of Canada) had held that consultative duties beyond those expressed in the treaty existed. Nor was it clear that the NIRB screening process was a consultative process within the meaning of the common law duty to consult, the NIRB not being tasked with consulting, but only with reviewing applications. The scope of the common law duty to consult depended on the nature of the infringement and of the aboriginal right being impacted. In this case, the common law duty to consult required a significant level of consultation and accommodation, because the Inuit right at stake (the right to harvest marine mammals) was of high significance, affecting their reliance on “country food” (less expensive and more nutritious than purchased food), as well as their cultural tradition of sharing country food within the community, making traditional clothing and participating in the hunt. The true nature or value of the consultations that took place could not be determined until trial, but there was evidence that the five public meetings were held when most Inuit were on the land, that community members at the meetings felt that decisions had already been made, and it was unclear if anything was done to document statements made by them at those gatherings about past experiences with seismic testing and its impact on animals. There were thus factual and legal questions to be decided, causing the judge to rule that there were serious issues to be tried.

Cooper J. further held that the Inuit of North Baffin would suffer irreparable harm if the injunction was not granted. The reports filed by the Government, alleging that the proposed seismic testing would have little or no impact on marine mammals, nevertheless, in one case, contained mitigation protocols (thus supporting the conclusion that there would be impacts), as well as statements admitting that such testing, particularly by the sounds it creates, had caused some displacement and migratory diversion of whales and other marine mammals, and the proposed testing areas in this case were both calving areas and migration routes for such mammals. The Government’s denial of long-term effects were in direct contradiction to the evidence from Inuit that previous seismic testing in the area affected migration routes and marine mammal populations in the affected areas “for a very long time”. The Court was satisfied, on the whole of the evidence, that irreparable harm would result from the denial of the injunction application.

The Court was also satisfied that the balance of convenience test favoured granting the injunction. If the testing proceeded and the mammals were affected, the Inuit would sustain loss of a food source and loss of a culture, for which no amount of money could compensate. On the other hand, the testing could proceed at a future date, and any loss that Canada might suffer if the testing did not proceed as scheduled was “quantifiable and compensable”. Accordingly the North Baffin Inuit stood to suffer the greater harm if injunctive relief were denied. The interlocutory injunction was therefore issued restraining NRCan from proceeding to conduct seismic testing pursuant to ECASE, and the QIA would be required to provide an undertaking to compensate for damages.

The decision is significant, not only with respect to environmental protection, but also in further emphasizing the need for meaningful consultation with Aboriginals where scientific projects may possibly affect their historic way of life. Justice Cooper also granted the testimony of Inuit elders as to past experiences equal weight with that of researchers and government officials. Ken Tyler of BLG-Vancouver has also noted that the judgment makes no reference to the testing validating Canada’s sovereignty claims under the law of the sea. It is interesting to speculate on why this is so. As Mr. Tyler remarks, perhaps the testing is irrelevant to validating the sovereignty claim. Or perhaps the Government lawyers failed to inform the Court about the purpose behind the seismic mapping program or the impending time limits for Canada to submit its claims. Or perhaps the Court decided to ignore the issue. Of course, it also remains to be seen if any appeal will be launched from Madam Justice Cooper’s decision.