Two Aboriginal Communities Take Their Fight Against Energy Companies to Canada's Supreme Court

The case could set a precedent for how major Canadian energy projects are decided in the future.
March 10, 2016, 7:42pm
Photo by Niore Iqalukjuak

Two First Nations have won the right to take their battles against the federal government and energy companies to the Supreme Court of Canada.

The win comes as Canada attempts to both reset its relationship with First Nations and figure out its national energy strategy — and the case could set a precedent for how major Canadian energy projects are decided in the future.

On Thursday, Canada's highest court approved the joint application by Clyde River and Chippewa of the Thames to be heard by the court's nine judges. And in the meantime, a lawyer for the First Nations is asking the energy companies to halt their projects until the Supreme Court decides the case.

"I'm still smiling — it's awesome," Chippewa of the Thames band councillor Myeengun Henry told VICE News after he heard the news. "By going to the Supreme Court of Canada, we're going to make some huge noise that's going to help other First Nations across Canada."

Across the country, a long list of First Nations are waging court battles against the federal government and the National Energy Board (NEB), which approves energy projects in Canada. In this case, while the two First Nations are on opposite sides of the country — with Clyde River in Nunavut to the north, and Chippewa of the Thames in southern Ontario — both say the federal government failed to consult them on major energy projects on their land.

'We're going to make some huge noise that's going to help other First Nations across Canada.'

"They are two separate cases, but we applied to the Supreme Court together," Henry said. "We looked at Clyde River's scenario and it's very similar to ours, so we thought it was better to team up."

In Clyde River, hunters tell stories of seals with pus in their ears, made deaf by seismic blasts in the '70s and '80s. Now, three seismic testing companies have been awarded permits to search for oil off the coast of the tiny town.

But the Inuit community says the loud blasts from seismic testing will alter the migration patterns of whales and other animals, which would dramatically change the way of life for the 1,000 mostly Inuit residents who are reliant on hunting these animals.

The NEB gave the seismic testing companies permission to start exploration this spring, but Clyde River says the federal government didn't consult them about the project, even though Canadian law states it has a fiduciary duty to do so.

When Clyde River first applied to the Supreme Court last fall, former mayor Jerry Natanine told VICE News his community would do whatever it took to block the seismic testing, including going out on boats to stop the companies.

"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.

Related: This Tiny Town Is the Last Wall Against Oil Exploration in Canada's Arctic

Meanwhile in southern Canada, Chippewa of the Thames is waging a war against a different energy company. The NEB approved an application by pipeline giant Enbridge to reverse the flow of Line 9 through their territory, allowing it to carry bitumen from the Alberta oil sands.

But the First Nation says the federal government failed to consult them directly about the project, and they worry about oil spills. Meanwhile, activists have been manually closing the valves along Line 9 in an attempt to stop oil flowing through the pipeline.

"I'm just over the moon happy with the Supreme Court of Canada decision," Clyde River lawyer Nader Hasan told VICE News. "But look, it's important to keep it in perspective. We have a lot more work to be done."

Thursday's ruling means the court agrees that both cases involve an issue of national and public importance — not that the country's highest court agrees with the First Nations' arguments about the federal government's duty to consult, Hasan said.

The lawyer said he would now ask the seismic testing companies to halt their activities planned for this spring, and if that doesn't work, he'll ask the highest court to order the companies to halt exploration to preserve the current conditions on the ground.

In January, the federal government extended an olive branch to another First Nation that said it hadn't consulted them. The Tsleil-Waututh First Nation in British Columbia argued in court that the NEB didn't properly assess the impact of increased tanker traffic. Hoping to quell tensions, the Attorney General of Canada asked to pause the court case for three months so it could consult directly with the First Nation.

Follow Hilary Beaumont on Twitter: @hilarybeaumont

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