RAVEN - Respecting Aboriginal Values and Environmental Needs

Clyde River Case – Nunavut

Clyde River (Hamlet) v. Petroleum Geo-Services Inc.

Year: 2017

Court: Supreme Court of Canada

Citation: 2009 SCC 9

Location: NU

TAGS: Duty to Consult; Treaty Rights; Natural Resources – Oil and Gas; Right to Harvest – Marine Mammals

While the Crown may rely on regulatory agencies to fulfil or partly fulfil the duty to consult, and if appropriate accommodate, Indigenous nations, the Crown is ultimately responsible for ensuring that the consultation is adequate.

Summary:

Under the Nunavut Land Claims Agreement (1993), the Inuit of Clyde River have a treaty right to harvest marine mammals. In 2011, TGS-NOPEC Geophysical Company ASA, Multi Klient Invest As and Petroleum Geo-Services Inc. applied to the National Energy Board to conduct offshore seismic testing for oil and gas resources. The testing could affect the harvesting rights of the Inuit of Clyde River. 

In Clyde River (Hamlet) v. Petroleum Geo-Services Inc., the Supreme Court of Canada found that the National Energy Board’s approval process triggered the duty to consult. The Court also found that the National Energy Board has the procedural powers necessary to implement consultation and the remedial powers to, if appropriate, accommodate for infringement on the rights of Indigenous nations; therefore, the Crown may rely on the National Energy Board to fulfil or partly fulfil the duty to consult. 

Deep consultation was required in this case. The Supreme Court of Canada held that the consultation was inadequate due to no consideration by the National Energy Board into the impact on the Inuit of Clyde River’s right to harvest marine mammals, the Crown not making it clear that it was relying on National Energy Board processes to fulfill its duty to consult, and the process of consultation not meeting the standard for deep consultation. 

Why this Case Matters:

Canadian society has become more and more regulated. Regulatory agencies and administrative tribunals make many decisions that affect the lives of the people living in Canada including Indigenous nations. Clyde River (Hamlet) v. Petroleum Geo-Services Inc. clarifies the roles of the Crown and the roles of regulatory agencies in the duty to consult, and if appropriate accommodate, Indigenous nations. 

While the Crown is responsible for adequately fulfilling the duty to consult, and if appropriate accommodate, the Crown may rely on regulatory agencies to fulfil or partly fulfil the duty to consult and, if appropriate, accommodate. If a regulatory process does not adequately fulfil the duty to consult and, if appropriate, accommodate, the Crown must take further measures to meet the duty. If a regulatory agency exercises executive power authorized by a legislature, its actions may trigger the duty to consult. However, the Crown is still responsible for the ensuring that the duty to consult, and if appropriate accommodate is adequately fulfilled and that the Indigenous nation is aware of the how the process will be carried out. A regulatory agency may be responsible for reviewing the adequacy of Crown consultation; however, the degree of appropriate review will depend on the circumstances of each case. 

Supreme Court Judgment:

https://www.canlii.org/en/ca/scc/doc/2017/2017scc40/2017scc40.html?autocompleteStr=%20Clyde%20River%20(Hamlet)%20v.%20Petroleum%20Geo-Services%20Inc.&autocompletePos=1 

Go Deeper: 

http://www.mandellpinder.com/clyde-river-and-chippewas-of-the-thames/ 

https://www.osler.com/en/resources/regulations/2017/supreme-court-releases-much-anticipated-chippewas

https://blg.com/en/News-And-Publications/Publication_5030

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