[2016] 1 F.C.R. D-3
Aboriginal Peoples
Judicial review of National Energy Board decision granting respondent TGS-NOPEC Geophysical Company ASA (TGS) Geophysical Operations Authorization (GOA) pursuant to Canada Oil and Gas Operations Act, R.S.C. 1985, c. O-7, s. 5(1)(b) to undertake two-dimensional offshore seismic survey program in Baffin Bay, Davis Strait (Project) — Applicants relying upon harvest of marine mammals in Baffin Bay, adjoining Davis Strait for their food security, economic, cultural, spiritual well-being — Marine mammals of particular importance to applicant community, identified as “threatened” under Species at Risk Act, S.C. 2002, c. 29, Committee on the Status of Endangered Wildlife in Canada — Whether applicants having standing to bring application — Whether Crown’s duty to consult with Inuit in regard to Project fulfilled — Whether Board erring in issuing GOA — Whether Crown obliged to seek advice of Nunavut Wildlife Management Board — Applicants directly affected by decision as several potential adverse environmental effects possibly flowing from Project — Thus having standing to challenge decision based upon administrative law principles — Applicant Nammautaq Hunters & Trappers Organization – Clyde River also given public interest standing to assert issues relating to Aboriginal or treaty rights — In fulfilling duty to consult, Canada relying on consultative efforts of proponents, their agents, administrative process of Board — Now settled law that Parliament may choose to delegate procedural aspects of duty to consult to tribunal — In order to determine mandate of tribunal, relevant to consider powers conferred on tribunal by constituent legislation, whether tribunal empowered to consider questions of law, remedial powers of tribunal — In present instance, in exercising authority to either permit project to proceed or not, Board required to assess Project’s “environmental effects” (as defined in Canadian Environmental Assessment Act, S.C. 1992, c. 37, s. 2), consider appropriate mitigation measures — Definition of “environmental effects” including reference to land use by Aboriginal persons — Board stating its commitment “to ensuring that appropriate consultation is carried out in respect of projects where there is a potential impact on the rights or interests of Aboriginal peoples” — Board also disseminating two public documents bearing on issue of consultation — Based on these facts, Board having mandate to engage in consultation process such that Crown may rely on that process to meet, at least in part, duty to consult with Aboriginal peoples — Supreme Court affirming that duty to consult may be integrated into robust environmental assessment, regulatory review processes — Crown conceding duty to consult triggered herein — Deep consultation required in light of potential impacts of project — Nature, scope of process afforded by Board sufficient to uphold honour of Crown — Process providing timely notice of Project to potentially affected Aboriginal groups, including Inuit of Clyde River — Process designed to facilitate participation of Aboriginal groups, enable them to convey their views on Project — Board’s report demonstrating that Aboriginal concerns considered, showing how those concerns taken into account by Board in report, terms, conditions imposed on GOA — Therefore, Board’s process affording meaningful consultation sufficient for Crown to fulfil duty to consult — Board not erring in issuing GOA: reasons adequate; findings supported by evidence; Aboriginal, treaty rights considered — Finally, Crown not obliged to seek advice of Nunavut Wildlife Management Board — Application dismissed.
Hamlet of Clyde River v. TGS-NOPEC Geophysical Company ASA (TGS) (A-354-14, 2015 FCA 179d*, Dawson J.A., judgment dated August 17, 2015, 42 pp.)
* Please note that the proper neutral citation for this decision is 2015 FCA 179. The “d” has been added to differentiate this digest from the decision that will be reported in full in the Federal Courts Reports.