Federal Appeal

Aboriginal Peoples

 Crown adequately fulfilled its duty to consult

Majority of residents of hamlet located on northeast coast of Baffin Island were Inuit and for generations people of hamlet relied upon harvest of marine mammals in Baffin Bay and adjoining Davis Strait for food security and economic, cultural and spiritual well-being. Area populations of bowhead whales had been identified as “threatened” and narwhal of Eastern Arctic had been identified as being of “special concern”. Proponents applied to National Energy Board for geophysical operations authorization (GOA) to undertake two-dimensional offshore seismic survey program in area. Board issued GOA to proponents on specified terms and conditions. In environmental assessment, board concluded that project was not likely to result in significant adverse environmental effects. Hamlet, mayor and hunters and trappers organization applied for judicial review of board’s decision. Application dismissed. Crown adequately fulfilled its duty to consult with Inuit in regard to project. Nature and scope of process afforded by board was sufficient to uphold honour of Crown. Process provided timely notice of project to potentially affected aboriginal groups. Board held meetings at which community members could address concerns. Proponents changed aspects of project’s design as result of consultation process. In its environmental assessment board assessed concerns raised by aboriginal groups and responses and undertakings of proponents. Terms and conditions imposed on GOA shaped how project would go forward and allowed aboriginal concerns to be expressed at later stages of project process. Board’s process afforded meaningful consultation sufficient that Crown might rely upon it to fulfill its duty to consult. Environmental assessment and terms and conditions imposed upon GOA provided reasonable degree of accommodation of applicants’ concerns about potential impacts caused by project upon their harvesting rights under s. 35 of Constitution Act, 1982.

Clyde River (Hamlet) v. TGS-NOPEC Geophysical Co. ASA (TGS) (Aug. 17, 2015, F.C.A., M. Nadon J.A., Eleanor R. Dawson J.A., and Richard Boivin J.A., File No. A-354-14) 260. A.C.W.S. (3d) 432

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