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Rust Never Sleeps

Some major events on Canada?s road to resources are playing out over the summer holidays. The big news is Petronas (Malaysia) walking away from its LNG project on the northwest coast of British Columbia. They blamed pricing. But everyone knows that local natives and eco-activists were unrelenting in their combined opposition. Not only does the decision kill the proposed site installation, but also its connecting cross-province gas pipeline to the B.C. gas fields. This was supposed to be great leap forward for the province: its gas, its pipeline, (exported to Asia) via its LNG facility. Sadly, now all three components are just the latest roadkill on the road to resources.

The very next day, the Supreme Court of Canada negated an oil and gas offshore seismic program (proposing to use underwater air guns) that would have opened up the eastern arctic. It turned out the NEB had not consulted with the Clyde River Inuit. Here?s court telling all involved to wake-up and start engaging meaningfully:

[44] The risks posed by the proposed testing to these treaty rights were also high. The NEB?s environmental assessment concluded that the project could increase the mortality risk of marine mammals, cause permanent hearing damage, and change their migration routes, thereby affecting traditional resource use. Given the importance of the rights at stake, the significance of the potential impact, and the risk of non-compensable damage, the duty owed in this case falls at the highest end of the spectrum. (Clyde River Hamlet v. Petroleum Geo-Services Inc., 2017 SCC 40)

[52] The consultation process here was, in view of the Inuit?s established treaty rights and the risk posed by the proposed testing to those rights, significantly flawed. Had the appellants (Inuit) had the resources to submit their own scientific evidence, and the opportunity to test the evidence of the proponents, the result of the environmental assessment could have been very different. Nor were the Inuit given meaningful responses to their questions regarding the impact of the testing on marine life. While the NEB considered potential impacts of the project on marine mammals and on Inuit traditional resource use, its report does not acknowledge, or even mention, the Inuit treaty rights to harvest wildlife in the Nunavut Settlement Area, or that deep consultation was required. (ibid)

This is native legal win #243 on the road to resources. And I?m leaving out the smaller roadkill (in the same timeframe) where court rulings in Ontario and Yukon have likewise blocked or impeded resource projects in those jurisdictions. What?s significant here in the high arctic, is that this rebuke of the NEB process by the top court, could have been penned a decade ago; when we we?re just hearing about the Duty to Consult for the first time. But now we?re supposed to have our act together.

Instead our regulatory institutions (the NEB) gets a rebuke from the court like this: 

[49] ? No mutual understanding on the core issues - the potential impact on treaty rights, and possible accommodations - could possibly have emerged from what occurred here. (Ibid)

That tells us, a full decade after the Duty to Consult was first enunciated, that we?re serious slow learners on the road to resources. So even during the dog days of summer, rust never sleeps. Once again the map of Canada is redrawn by the native legal winning streak; and by the looks of it: we?re providing the pen, paper and ruler.

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