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Oil exploration blocked in watershed Supreme Court ruling on Indigenous rights
26/07/17
From: Jessica Wilson <jessica.wilson@greenpeace.org>
Date: Wed, Jul 26, 2017 at 9:32 AM
Subject: [km_strategy] Some additional info on today's two Supreme Court of Canada rulings
To: "<km_strategy@googlegroups.com>" <km_strategy@googlegroups.com>
Hi everyone,
Moving at a million miles over here in Ottawa so apologies for the brevity of the last email. [Editor: See below line on this posting] Please see below for a bit more context.
However, it's not all good news. We are thinking today of the Chippewas of the Thames First Nation, whose appeal was unfortunately dismissed. We know that their fight will continue. And we are hopeful that the precedent set by Clyde River's case will strengthen their fight.
We're now analyzing what this will mean for other contested resource extraction projects, namely for tar sands and pipelines and will send more as we have it.
Moving at a million miles over here in Ottawa so apologies for the brevity of the last email. [Editor: See below line on this posting] Please see below for a bit more context.
Media, analysts, lawyers, and all of us are going to be dissecting and analyzing this ruling for days, weeks and likely years to come.
But the thrust of it is simple: The gov of Canada cannot simply rely on a regulatory process. That is not sufficient consultation.
Today's ruling was a split — good news for Clyde River (the seismic blasting permits have been quashed!) and by extension all Indigenous communities in terms of their ability to decide what kind of resource extraction happens on their lands and in their waters. There is so much bold, blunt, and helpful language in the ruling, encourage you to read it, but i've pulled out several key takeaways below. Here's a taste:
But the thrust of it is simple: The gov of Canada cannot simply rely on a regulatory process. That is not sufficient consultation.
Today's ruling was a split — good news for Clyde River (the seismic blasting permits have been quashed!) and by extension all Indigenous communities in terms of their ability to decide what kind of resource extraction happens on their lands and in their waters. There is so much bold, blunt, and helpful language in the ruling, encourage you to read it, but i've pulled out several key takeaways below. Here's a taste:
“A project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest.”
When affected Indigenous groups have squarely raised concerns about Crown consultation with the NEB, the NEB must usually address those concerns in reasons, particularly in respect of project applications requiring deep consultation.”
However, it's not all good news. We are thinking today of the Chippewas of the Thames First Nation, whose appeal was unfortunately dismissed. We know that their fight will continue. And we are hopeful that the precedent set by Clyde River's case will strengthen their fight.
We're now analyzing what this will mean for other contested resource extraction projects, namely for tar sands and pipelines and will send more as we have it.
Here are some additional key findings from the ruling:
--
[4] While the Crown may rely on the NEB’s process to fulfill its duty to consult, considering the importance of the established treaty rights at stake and the potential impact of the seismic testing on those rights, we agree with the appellants that the consultation and accommodation efforts in this case were inadequate. For the reasons set out below, we would therefore allow the appeal and quash the NEB’s authorization.
[22] While the Crown may rely on steps undertaken by a regulatory agency to fulfill its duty to consult in whole or in part and, where appropriate, accommodate, the Crown always holds the ultimate responsibility for ensuring consultation is appropriate.
[23] Where the Crown relies on the processes of a regulatory body to fulfill its duty in whole or in part, it should be made clear to the affected Indigenous groups that the Crown is so relying.”
[24] Above all, and irrespective of the process by which consultation is undertaken, any decision affecting Aboriginal or treaty rights made on the basis of inadequate consultation will not be in compliance with the duty to consult, which is a constitutional imperative. True reconciliation is rarely, if ever, achieved in courtrooms....No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation.
[39] If the Crown’s duty to consult has been triggered, a decision maker may only proceed to approve a project if Crown consultation is adequate...Accordingly, where the Crown’s duty to consult an affected Indigenous group with respect to a project under COGOA remains unfulfilled, the NEB must withhold project approval.
[40] We do not, however, see the public interest and the duty to consult as operating in conflict. As this Court explained in Carrier Sekani, the duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest (para. 70). A project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (ibid.).
[43] “The Crown acknowledges that deep consultation was required in this case, and we agree…Here, the appellants had established treaty rights to hunt and harvest marine mammals.” Jerry Natanine explains the importance of hunting marine mammals to the community.
[51] “These changes were, however, insufficient concessions in light of the important impairment of the Inuit’s treaty rights. Further, passive acoustic monitoring was no concession at all…None of these putative concessions, nor the NEB’s reasons themselves, gave the Inuit any reasonable assurance that their constitutionally protected treaty rights were considered as rights, rather than as an afterthought to the assessment of environmental concerns.”
Jessica Wilson
Extreme Oil Campaign Director
Greenpeace is an independent global campaigning organization that acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace. Greenpeace does not accept money from governments, political parties or corporations.
Extreme Oil Campaign Director
Greenpeace is an independent global campaigning organization that acts to change attitudes and behaviour, to protect and conserve the environment and to promote peace. Greenpeace does not accept money from governments, political parties or corporations.
Live streaming press conference now, more soon on what this could mean for tar sands and pipelines fights re consultation and sovereignty.
Full ruling here: https://scc-csc.lexum.
Oil exploration blocked in watershed Supreme Court ruling on Indigenous rights
26 July 2017 (OTTAWA) — The Supreme Court of Canada has ruled unanimously in favour of the Inuit hamlet of Clyde River in its case to stop oil exploration in the Canadian Arctic.
This landmark ruling will have far-reaching impacts in terms of strengthening Indigenous rights around resource extraction projects, giving this David vs. Goliath battle a watershed ending of national significance.
The Supreme Court of Canada ruled that while the National Energy Board (NEB) process can be a vehicle for consultation for the Crown to act and can determine whether the Crown's duty to Consult has been fulfilled, the Crown's duty was not fulfilled in this case. When the NEB fails to fulfill its duty, the NEB must withhold project approval.
In this case, the court found that the consultation and accommodation efforts were inadequate and fell short in several respects including the failure to engage in deep consultation.
Reacting to the news from Ottawa, Jerry Natanine, a community leader and former mayor of Clyde River, said:
“I’m truly grateful to the Supreme Court for this ruling, which protects my community and the marine animals on which we depend from seismic blasting. This ruling will also help protect Indigenous rights and voices, and hopefully shield others from what we’ve been through. Like all people, we want economic opportunities to flow into our communities. But we know that we are part of the land, and an economy that destroys the earth destroys ourselves.”
Nader Hasan, Clyde River’s legal counsel, said:
“The court’s decision is truly groundbreaking for Clyde River and for Indigenous rights across Canada. It took the highest Court in the land to remind the Government of Canada once again that consultation with Indigenous peoples must be meaningful. Government cannot simply pay lip service to sacred constitutional obligations. It has been an honour representing the people of Clyde River, who refused to back down despite seemingly impossible odds. They have won a victory for Indigenous rights everywhere.”
Mr. Natanine and Mr. Hasan will be speaking to media today at 11:30am EST on Parliament Hill in the Charles Lynch Room (130-S) in Centre Block. Members of the media are invited to attend and ask questions.
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Press Kit with background information available here.
Photos’ Gallery available here. This gallery will be updated throughout the day with photos from the press conference.
Media Contacts:
To arrange interviews remotely, please contact:
Loujain Kurdi, Communications Officer on behalf of the community, 514-577-6657, loujain.kurdi@greenpeace.org
To speak to a press officer at the press conference, please contact:
Philippa Duchastel de Montrouge, Communications Officer on behalf of the community, 514-929-8227, philippa.duchastel.de.
Additional notes
The ruling can be found in its entirety here.
Key findings from the ruling:
[4] While the Crown may rely on the NEB’s process to fulfill its duty to consult, considering the importance of the established treaty rights at stake and the potential impact of the seismic testing on those rights, we agree with the appellants that the consultation and accommodation efforts in this case were inadequate. For the reasons set out below, we would therefore allow the appeal and quash the NEB’s authorization.
[24] True reconciliation is rarely, if ever, achieved in courtrooms....No one benefits — not project proponents, not Indigenous peoples, and not non-Indigenous members of affected communities — when projects are prematurely approved only to be subjected to litigation.
[40] We do not, however, see the public interest and the duty to consult as operating in conflict. As this Court explained in Carrier Sekani, the duty to consult, being a constitutional imperative, gives rise to a special public interest that supersedes other concerns typically considered by tribunals tasked with assessing the public interest (para. 70). A project authorization that breaches the constitutionally protected rights of Indigenous peoples cannot serve the public interest (ibid.).
[43] “The Crown acknowledges that deep consultation was required in this case, and we agree…Here, the appellants had established treaty rights to hunt and harvest marine mammals.” Jerry Natanine explains the importance of hunting marine mammals to the community.
[51] “These changes were, however, insufficient concessions in light of the important impairment of the Inuit’s treaty rights. Further, passive acoustic monitoring was no concession at all…None of these putative concessions, nor the NEB’s reasons themselves, gave the Inuit any reasonable assurance that their constitutionally protected treaty rights were considered as rights, rather than as an afterthought to the assessment of environmental concerns.”
Jessica Wilson
Extreme Oil Campaign Director
Extreme Oil Campaign Director
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