Two court decisions raise questions about Indigenous rights to stop extraction on their lands
- Katie Doke Sawatzky | August 23, 2017
Two decisions by the Supreme Court of Canada mean Indigenous communities may or may not win if they take the fight over resource extraction on their lands to court.
On July 26, the SCC handed down judgments for two cases involving Indigenous communities who appealed decisions made by the National Energy Board to grant permission to oil and gas companies for resource extraction activities on their lands.
One community was victorious, the other was not.
Clyde River, an Inuit hamlet in Nunavut on the shore of Baffin’s Island, applied for judicial review of the NEB’s decision to allow oil and gas companies, including Norwegian Petroleum Geo-Services Inc., to do offshore seismic testing in its community’s hunting waters. The testing would have lasted five months for five consecutive years.
The SCC decided that the consultations NEB held about the proposed testing were inadequate because the companies couldn’t answer basic questions from community members about which marine animals the testing would impact.
“We were saying National Energy Board was wrong. Today it’s confirmed that they were,” said Jerry Nanatine, former mayor of Clyde River in an Ottawa press conference.
“(It was) a seemingly impossible case. We thought we were going to be over when we appealed the National Energy Board decision. Now, today, we know we are on the right side of justice,” he said.
The Chippewas of the Thames, an Anishinaabe First Nation in southwest Ontario, was not successful in their appeal of another NEB-approved project granting oil giant Enbridge the right to modify a pipeline that passes through their territory. Enbridge wants to increase the capacity of the pipeline and pump heavy crude through it.
Judges Karakatsanis and Brown, who also ruled in the Clyde River case, decided the NEB consultations with the COTTFN were “manifestly adequate,” unlike those in Clyde River. They wrote in their decision that the NEB reviewed the written and oral concerns of community members and “identified, in writing, the rights and interests at stake,” rather than couching the consultations in a written environmental assessment as had been done in the Nunavut case.
In a video on the First Nation’s website, Chief Henry Myeengun Henry says that the 40-year-old pipeline Enbridge wants to modify is close to passing its life expectancy. For him the danger lies in the possibility of crude oil spilling into the Thames River when the line breaks, which he says experts predict will happen within two to five years.
The river provides food and medicine for his people.
“What we’re trying to prevent is the devastation of the land and resources that (are) in this region…As members of our nation and protectors of the land, we’re going to do everything we can to protect our Mother Earth and the all the resources she gave us,” said Henry.
Former chief Leslee White-Eye told The London Free Press that her community may resort to civil disobedience if need be.
“We’ll have to go back to what we know best, and that is that we’ll stand up on our own laws and assert our rights over our treaty lands as we’ve always done,” she said.
With files from CBC