Amnesty International was represented in this case by Justin Safayeni and Kathrin Furniss at the Federal Court of Appeal and by Colleen Bauman and Cassandra Porter at the Supreme Court of Canada.
WHAT IS THIS CASE ABOUT?
In June 2014, the National Energy Board (NEB) approved plans by a group of multinational corporations to carry out seismic exploration for oil and gas in the coastal waters of Baffin Island. The project risks causing damage to marine life that forms an integral basis of Indigenous subsistence and cultural practices of the local Inuit population. As a result, the predominantly Inuit Municipality of Clyde River, the Nammautaq Hunters and Trappers Organization, and the Mayor of Clyde River have taken the case to court, alleging that the NEB failed to adequately consider the harmful effects of seismic testing on marine mammals and on Inuit food, economy and culture, and that the decision violated the constitutional rights of the Inuit to be consulted and accommodated.
STATUS OF THE CASE
The Federal Court of Appeal upheld the NEB’s approval of the seismic testing, concluding that the Crown had adequately fulfilled its duty to consult with the Inuit community in Clyde River. Leave to appeal the Federal Court of Appeal’s judgment was granted by the Supreme Court of Canada in March 2016 and the hearing of the case scheduled for November 2016.
AMNESTY INTERNATIONAL’S INTERVENTIONS
Amnesty International requested leave to intervene in this case at both the Federal Court of Appeal and the Supreme Court of Canada. In both requests to intervene, Amnesty International proposed to make submissions that international human rights law should inform the courts’ understanding of Canada’s constitutional obligations to consult with and accommodate Indigenous peoples when undertaking activities that affect Indigenous lands, territories, and resources. Indigenous peoples must be given a meaningful and good faith opportunity to participate in any decision-making that may affect their land and resource rights. Where the potential for harm is significant, projects should proceed only with the free, prior, and informed consent (FPIC) of the affected Indigenous peoples.
These international obligations are set out in a number of international instruments, including the UN Declaration on the Rights of Indigenous Peoples, the UN Charter, the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and the International Covenant on the Elimination of all Forms of Racial Discrimination, and should inform the Courts’ decision when interpreting the Crown’s duty to consult under section 35 of the Canadian Constitution.
Amnesty International’s motions to intervene were denied by both the Federal Court of Appeal and Supreme Court of Canada.
STATUS OF THE CASE
In a unanimous decision issued on 26 July 2017, the Supreme Court of Canada overturned the approval for the seismic testing, finding that the “significantly flawed” decision-making process did not meet the standard of consultation required by the Canadian Constitution. The decision highlights the ultimate responsibility of the government to ensure that Indigenous rights are protected when resource development projects are undertaken in Canada, and to correct the current process by which decisions are made.
“Supreme Court to hear historic Indigenous rights case tomorrow” (29 November 2016)
“It’s not ‘consultation’ if government isn’t listening” (28 November 2016)