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A Win For Treaty Rights: The Supreme Court Of Canada Issues Decision In Clyde River Appeal
The Supreme Court of Canada issued its decisions in the companion cases Hamlet of Clyde River et al v PGS et al. and Chippewas of the Thames First Nation v. Enbridge Pipelines Inc. today in much-anticipated rulings.
Inuvialuit Regional Corporation (IRC), welcomed today’s unanimous decision of the Court in the Clyde River appeal, to quash the permit of the National Energy Board (NEB) authorizing seismic testing in Baffin Bay and the Davis Straight. IRC, who represents the rights and interests of the Inuvialuit under the Inuvialuit Final Agreement, intervened in the case.
“Alongside our fellow Inuit land claim organizations, we advocated for maintaining the integrity of treaty rights through an adequate standard of consultation and accommodation in regulatory review processes”, said Duane Smith, Chair and CEO of IRC. “This is a crucial ruling that makes clear the requirement to assess the specific impacts of a project on the hard-won treaty rights of Indigenous Peoples. The focus is not on environmental effects generally. This is a ruling in favour of the rights of Inuit who rely on the health of our ecosystems, which include marine mammals”.
The Court removed doubt as to the place of the duty to consult and accommodate in environmental regulatory review processes. The Court stated at paragraph 24 that “Crown consultation before project approval is always preferable to after-the-fact judicial remonstration following an adversarial process. True reconciliation is rarely, if ever, achieved in courtrooms”.
The Court also clarified the role of administrative tribunals and the Crown regarding consultation in regulatory reviews. “This decision says that while the Crown may rely on the processes of administrative tribunals to fulfill the duty to consult, the Crown always holds ultimate responsibility for ensuring consultation is adequate. Furthermore, the decisions of regulators must conform to s. 35(1) of the Constitution Act, 1982,” Kate Darling, Legal Counsel for IRC, explained. “In this case, the NEB did not adequately consult the Inuit of Clyde River on the impact of the proposed seismic testing on their treaty rights. Advised of the Inuit concern over the adequacy of the consultation, it was the Crown’s responsibility to step in and remedy the deficit.”
Inuvialuit advocated for procedural safeguards to be followed in consultations where a Crown decision could significantly impact a treaty right. At paragraph 23, the Court confirmed that Indigenous groups must be informed about the consultation that the Crown or regulator will follow and be given the opportunity to raise concerns with that proposed process. The Court also acknowledged that over the course of the consultation, there must be a mutual understanding on the potential impact on treaty rights; adequate participant funding; and, opportunities for meaningful participation.
“We will be monitoring to see how the federal government incorporates this important decision of the Court into the ongoing environmental assessment legislative review processes. And, we encourage the federal government to take note of this case when they finally undertake negotiations with respect to the offshore areas in the Inuvialuit Settlement Region pursuant to the Devolution Agreement,” said Smith.
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