NEB can fulfill duty to consult Indigenous groups, top court rules – by Shawn McCarthy (Globe and Mail – July 27, 2017)

OTTAWA — The Supreme Court of Canada affirmed Wednesday that Indigenous people do not have a veto over resource projects affecting their traditional territory, even as it quashed a regulatory permit for an oil-exploration program that Inuit residents of Baffin Island feared would damage their hunting rights.

Residents of Clyde River – population 1,100 – fought an uphill battle against a consortium of multinational oil service companies that planned to conduct seismic testing to assess the oil and gas potential of offshore sites. The top court agreed that the regulatory agency had failed to adequately assess the risk posed by the seismic testing to the community’s treaty rights to hunt bowhead whales, narwhal, seals and polar bears.

In a companion ruling, the Supreme Court rejected a challenge by a First Nations community that argued the government had failed to properly consult and accommodate its concerns when the regulatory agency approved Enbridge Inc.’s project to reverse the flow of its existing Line 9 pipeline through Ontario to Quebec.

In dismissing the suit brought by the Chippewas of the Thames First Nation, the nine justices unanimously ruled that Indigenous communities do not have the final say over proposed resource projects that affect their traditional territory but that government and its regulatory agencies face a high bar in ensuring their rights are fully considered and accommodated.

The decisions from the top court make it clear that when assessing projects, the National Energy Board must clearly and explicitly consult with Indigenous groups, give them a full opportunity to participate in the process and accommodate their rights where the projects would pose some risks. However, those rights must be balanced against “competing societal interests,” the decision said.

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