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  November 29, 2016

Canadian Supreme Court Set To Hear First Nations Challenge to Seismic Testing and Pipeline Construction

Justin Safayeni and Jerry Natanine argue that the law should be interpreted to halt certain gas and oil projects involving seismic testing and pipeline construction
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Photo Credit: Environmental Defense Canada/flickr


KIM BROWN: Welcome to The Real News Network. I'm Kim Brown in Baltimore. First Nations indigenous Canadians are taking the Canadian government to court over violations of the Canadian Constitution the state is making in the interests of oil and gas corporations. The Supreme Court case will begin this Wednesday involving two First Nations, the first being the Inuit of Clyde River, which is a remote community located on the shores of Baffin Island in the northern territory of Nunavut who are trying to block seismic blasting being used for oil exploration off of their shores. And the other nation is that of the Chippewas of the Thames First Nation who are appealing the government-approved oil and gas company, Enbridge's Alberta oil sands 9B pipeline through their traditional lands in Southern Ontario onward to Quebec.

And with us to discuss this case and the issues involved in it are Jerry Natanine, who is the Former Mayor of Clyde River which is an autonomous territory of the Nunavut and who is also leading the legal battle to protect Inuit waters from the harms of seismic testing. He's joining us today from Ottawa. And, also on the line with us is Justin Safayeni, he practices Constitutional, Administrative, Regulatory and Commercial Litigation at Stockwoods LLP in Toronto. He is part of the team of lawyers representing the appellants in the Clyde River case before the Supreme Court of Canada. Welcome back, Jerry. And welcome, Justin.



KIM BROWN: Well, Jerry, the last time we spoke with you, you were on a Greenpeace ship headed to Clyde River to install solar panels, so it's good to see you back on land. And we want you to recap for us what has been happening with the seismic blasting in the area around the Clyde River and what has been the effect on the environment and the community there?

JERRY NATANINE: Yes. Thank you very much. So, two years ago, a company was awarded the license to do seismic blasting around our area. But, to date, they haven't done anything; they've agreed to stop until we've finished our appeal to the Appeals Court and then from that they agreed to stop it until the Supreme Court case is done. So, up to now, they haven't done anything.

KIM BROWN: So, Jerry, to what degree was the community actually consulted, if at all?

JERRY NATANINE: Well, the community was consulted. National Energy Board came in with the company representatives and they held a public meeting and it was all in English, all their material was all in English. And it was mainly for them telling the community what's going to happen, what they will do. And that was basically the consultation that they did.

KIM BROWN: So, Justin, how did these two cases get joined and explain if and how the cases were largely focused on the constitutional duty to consult with Canada's aboriginal peoples?

JUSTIN SAFAYENI: Sorry, Kim, I'm having a hard time hearing you.

KIM BROWN: That's okay. I can repeat the question. Do you want me to?


KIM BROWN: Sure. So, Justin how did these two cases get joined. And can you explain if and how the case will largely focus on the constitutional duty to consult with the aboriginal peoples of Canada?

JUSTIN SAFAYENI: Sure. So, the cases get joined because the Supreme Court does this from time to time when cases raise very similar issues, even if there are different facts; if the legal issues are similar they will often agree to hear two cases together and that's what happened here. Both of these cases were decided by the Federal Court of Appeal within a few months of each other and both aboriginal groups applied for leave to the Supreme Court around the same time. And so, the Court agreed to hear the cases together. And both of them, although they raise different facts, as Jerry explained, our case involves seismic testing and the ChippewaÂ’s case involves the Pipeline Project.

The core legal issues are very similar and, as you say, they involve this duty to consult, which is a constitutional doctrine the Court came up with back in 2004, but still lower courts are grappling with exactly what this duty means and how this duty should be recognized and implemented throughout different approval processes -- whether that's for seismic testing license or for a pipeline approval. So, that really is going to be the focus of the legal issue, I think, in both cases, although they arise on very different facts.

KIM BROWN: But, Justin, aren't the rights of the First Nations people already protected under the Canadian Constitution?

JUSTIN SAFAYENI: So, they are recognized and protected in Section 35. The Supreme Court has explained the duty to consult flows from that constitutional recognition. So, it is a duty with constitutional dimensions or a constitutional basis, if you will. The issue is exactly what does that duty involve? In our case, for example, I mean, we say that the Crown, the Government really, wasn't present or engaged throughout the process. And it's the Crown who ultimately has the duty to consult. So, one of the things that the Court is going to have to look at and address is whether the Crown can discharge this duty without even being involved in the regulatory process, the process that led to the approval of the seismic testing.

KIM BROWN: So, Jerry, can you tell us about the solidarity rally that's happening in Ottawa in support of your legal challenge?

JERRY NATANINE: Yes, on November 30, Wednesday, starting at eight o'clock there is a solidarity rally, starting right in front of the Supreme Court, and a lot of people will be there. We have a number of groups that have joined together, Amnesty International, Idle No More, Council of Canadians, Greenpeace, Mining Injustice and Solidarity Network. And we're hoping for a great turnout, and that day where we will be serving some country food from up North and people from Clyde River will be down here for that, including, the Honorable Mayor from there. So, we're really excited about that.

KIM BROWN: So, Jerry, talk to us about the issue of food insecurity and particularly about the children in your community that the people of Clyde River and the effect that the seismic blasting would have to further impact the issue. Because your people are ones that live off the land. So, if oil and gas companies are doing seismic blasting or oil exploration, it's obviously having a detrimental effect to your food source.

JERRY NATANINE: Absolutely. So, we're a hunter-gatherer society still and we practice our hunting culture every day, daily activities and seal is our mainstay. We get, every day, every other day for a meal, I have country food along with my children and my family. And if this were to go ahead, you know, we don't know what we would do. Like the store prices up there, they're three or four times higher than Ottawa. You know, T-bone steak, to buy that, that's $24, watermelon, $25 for a whole watermelon. You know, that's how it is with the prices. And if our hunting culture, the ability to hunt wildlife, narwhales and seals and fish and all that stuff, you know, that would devastate our culture to the point where we feel that our life is in danger from this activity.

KIM BROWN: Well, I want to pose this last question to you both, so what would the ideal outcome for this trial be and when will we have the final verdict from the Canadian Supreme Court? Justin?

JUSTIN SAFAYENI: So, what we're asking for is the decision from the National Energy Board approving the seismic testing to be set aside or quashed because of the lack of consultation leading up to that decision. And, in the normal course, the Supreme Court issues decisions anywhere between eight and 12 months after the case is heard. So, sometimes longer, sometimes shorter, but I think it's reasonable to expect a decision late next year.

KIM BROWN: And, Jerry, what would be your ideal outcome for the resolution of this case? What would you like to see happen?

JERRY NATANINE: Yes, we are in the same situation, exactly the same. You know, we want to quash that decision so that they stop the seismic testing. And if they want to do that, we want to be equal partnerships, we want to have a say in how it's done, when it's done and where. You know, we want to be involved in whatever happens; and we're hoping that that license will be revoked and that there will be no seismic testing. And if it were to happen, we want to be equal partners, we want to have a say in what happens.

KIM BROWN: Indeed. We've been speaking with Jerry Natanine. He is the Former Mayor of Clyde River, from the Nunavut Territory up north in Canada. He's been speaking to us today from Ottawa. We've also been joined with Justin Safayeni. He is practicing law in Toronto representing one of the First Nations of the indigenous people in the Supreme Court case. Gentlemen, thank you both so much for speaking with us.

JERRY NATANINE: Thank you very much.

KIM BROWN: And thank you for watching The Real News Network.



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