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NEB can fulfill duty to consult, but must do so meaningfully

NEB can fulfill duty to consult, but must do so meaningfully”

"That's guidance on a go-forward basis, but I don't think there's anything there that is going to have a significant impact on the Trans Mountain litigation", he said.

Clyde River community members in Ottawa for the ruling will hold a news conference late Wednesday morning.

In an admirable job of balancing competing rights, which is how rights work in a just and pluralist society, the high court set out sensible ground rules to enable resource projects to take place on lands in which indigenous peoples have treaty rights and must be consulted.

The Supreme Court noted that accommodations recorded by the NEB's environmental assessment report after limited Inuit participation included things like putting community liaison officers in communities affected by the testing and the design of an Inuit Qaujimajatuqangit (Inuit traditional knowledge) study but said this was not enough.

Yet the consultation "fell short in several respects" the court found.

"In this case, in light of the scope of the project and the consultation process afforded to the Chippewas of the Thames by the NEB, the Crown's duty to consult and accommodate was fulfilled", wrote a unanimous court.

But Akeeagok and Kotierk still aren't sure exactly what those implications will be.

Clyde River is an Inuit community on the northeast coast of Baffin Island.

In that case, the Supreme Court ruled that the community was adequately consulted on Enbridge's plans.

There are some lessons and some comfort for everyone in the decisions the Supreme Court of Canada made Tuesday in two cases where resource development projects were pitted against Ottawa's duty to consult indigenous communities whose treaty rights might be affected.

However, in the second case, seismic testing near Clyde River in Nunavut, the court found the energy board had disregarded treaty rights of the Inuit people when it proceeded to test in marine areas protected under the agreement without analyzing the effect it would have on the community.

At the same time, Clyde River did get some "nominal funds" from QIA, Natanine said.

A few months later, the companies filed a 3,926-page document in answer to those questions - but the vast majority of the massive data dump was not translated into Inuktitut. "There's so many different layers to the difficulties that people face to be able to participate in something like this", Kotierk added.

The judgment of the supreme Court thus puts an end to the oil project.

"The government can not continue to pay lip service to reconciliation and Indigenous rights while continuing to ignore the duty to consult and accommodate".

"The consultation process here was, in view of the Inuit's established treaty rights and the risk posed by the proposed testing to those rights, significantly flawed", the ruling said.

"The Trans Mountain process is very much the way the NEB does oil pipeline hearings, which is very much the way they did Line 9", Schultz said, noting Kinder Morgan is preparing for construction of the long-awaited mega-project.

"This decision means everything to the Inuit, seismic blasting is an existential threat", Nader Hasan, the lawyer representing the Inuit nation, said.

The NDP government in B.C. had previously vowed to "employ every tool available" to stop the pipeline, but B.C. attorney general David Eby recently said the province would not artificially delay permits for the pipeline because "we'll be sued".



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