Located at the eastern entrance to the Northwest Passage, Lancaster Sound is frequently referred to as the Serengeti of the Arctic in recognition of its incredible biological richness. In summer, it is home to over 80 percent of the world’s narwhals, one-third of North America’s beluga whales, thousands of endangered eastern bowhead whales and one of Canada’s largest polar bear populations, as well as walrus and ringed, bearded and harp seals. Millions of Arctic seabirds, such as black-legged kittiwakes, thick-billed murres, northern fulmars and snow geese, breed along its coast. The marine mammals are particularly important sources of food for the Inuit as well as having cultural significance for them.
In light of the importance of the area to the economic and cultural well-being of local Inuit communities and to Arctic ecology, more generally, the apparent policy reversals of the Canadian government over the past year and a half appear perplexing and disturbing. In December 2009, the federal Ministers of the Environment, Parks Canada and Health, along with the Nunavut Minister of the Environment and the Acting President of the Qikiqtani Inuit Association, announced a $5-million feasibility study for designating Lancaster Sound as a national marine conservation area. Several months later, in what appeared to local Inuit communities and environmental groups as a policy reversal, the fed-eral and Nunavut governments approved seismic testing to determine the resource potential of Lancaster Sound. The tests were halted by a court injunction in August 2010. Then in December of the same year, the federal government announced potential boundaries for a national marine conservation area in Lancaster Sound, pledged to protect its wildlife and prohibited further seismic testing in the area until consultations with local communities had been completed. What happened? Were there policy reversals? If so, why? What lessons can be learned from this experience?
In 2008, the Harper government committed $100 million dollars over five years to the Canadian Geological Survey’s program to update its geological maps depicting energy and mineral resources in the Arctic. Such testing in harsh Arctic conditions is extremely expensive; thus, when officials in Natural Resources Canada heard that the German ship R/V Polarstern was going to be conducting research in Lancaster Sound in the summer of 2010, they saw an opportunity to join forces and to undertake some of the seismic testing that the Canadian Geological Survey needed. While Environment Canada wanted to have Lancaster Sound designated as a national marine conservation area, it respected the argument put forward by Natural Resources that one needs to know what resources exist in and around an area before it is reserved for conservation. Hence, a press release was issued announcing that testing would be conducted with the support of the ministers of both departments.
As the tests were to be conducted in waters off Nunavut, it was necessary to have the approval of the territorial government. In accordance with the Nunavut Land Claims Agreement, all applications for seismic testing must be reviewed by the Nunavut Impact Review Board, which evaluates their environmental and socio-economic impact. In making its assessment in this case, the Nunavut Impact Review Board relied heavily on the advice of the Nunavut Research Institute, which had done an extensive literature review and concluded that there was little evidence that seismic testing would harm the marine mammals. The Nunavut Impact Review Board approved seismic testing, albeit with a list of conditions, which included holding meaningful consultations with the communities involved and having mammal observers on the ship to ensure that the seismic air gun was not deployed within one kilometre of a marine mammal. On the basis of the board’s recommendation, the Nunavut environment minister issued a research licence for the scientists to conduct the tests in Lancaster Sound.
On August 3, 2010, six days before the Polarstern was to commence its testing in Lancaster Sound, the Qikiqtani Inuit Association applied to the Nunavut Court of Justice to have the testing stopped on the grounds that the federal government had failed to hold meaningful consultations with the Inuit or to adequately accommodate their interests. The Qikiqtani Inuit Association is a regional organization with a mandate to represent the interests of the Inuit of the Baffin Region, Belcher Islands and the High Arctic that emanate from the Nunavut Land Claims Agreement. It raised concerns that the testing could negatively affect marine wildlife and serve as a precursor for oil and gas exploration and development, which could seriously threaten the economic and cultural well-being of the Inuit. On August 8, 2010, the court ordered the testing stopped on the grounds that the tests could cause ”œirreparable harm” to the five affected Inuit communities (Arctic Bay, Grise Fiord, Resolute Bay, Pond Inlet and Clyde River). The Court confirmed the Canadian government’s duty to consult with and accommodate Inuit in the interpretation of the latter’s treaty rights. Although officials from Natural Resources had held one-day consultations in each of the affected communities, the meetings had been rushed and poorly executed. Furthermore, they were convened when many local citizens were away on hunting expeditions.
In short, by going to the Nunavut Court of Justice, a regional Inuit association successfully overturned the decisions of the federal government, the Nunavut government and the Nunavut Impact Review Board. The federal government did not appeal the decision. Instead, on December 6, 2010, the federal Ministers of the Environment, Indian Affairs and Northern Development, Natural Resources and Health reaffirmed the government’s commitment to protecting the marine waters and wildlife of Lancaster Sound and Eclipse Sound and jointly announced the start of consultations to establish the boundaries for a 44,300-square-kilometre national marine conservation area in the region. The press release cited John Baird, then Minister of the Environment, as saying that the policy ”œset the stage for respectful, transparent consultations with our key partners and the public so that all views can be considered before any boundary is finalized.” Christian Paradis, then Minister of Natural Resources, pledged that ”œwhile these consultations take place, no exploration or development of petroleum resources will occur within the proposed boundaries. Once approved as a designated National Marine Conservation Area, the region will remain protected from industrial development, regardless of the resource potential.” In short, the press release addressed some of the key concerns of the government’s critics pertaining to consultation, seismic testing and the Arctic ecosystem in Lancaster Sound.
The case exemplifies the complexity of decision-making in the Arctic, with its multiple actors and their diverse interests, rights and responsibilities. What lessons can be learned from the experience?
The concepts of consultation and accommodation are very important to Aboriginal peoples. Partnership is not just rhetoric for the Inuit, it is expected. They have strong, effective organizations at the regional, national and international levels (e.g., the Inuit Circumpolar Conference, Inuit Tapiriit Kanatami, Nunavut Tunngavik Incorporated and Qikiqtani Inuit Association). Expectations of partnership are also prevalent outside Aboriginal circles as exemplified by the Arctic Council, which has Aboriginal people as permanent participants. The need to consult with Aboriginal peoples is stipulated in numerous articles of the United Nations Declaration on the Rights of Indigenous Peoples as well as in Canada’s Constitution Act of 1982 and the Nunavut Land Claims Agreement. Aboriginal Affairs and Northern Development Canada (until May 2011, Indian Affairs and Northern Development) has instituted guiding principles for Aboriginal consultation and accommodation and steps to govern their implementation.
The Supreme Court of Canada has established some important legal precedents pertaining to the need to consult. Through a series of judgments " Haida Nation v. British Columbia (2004), Taku River Tlingit First Nation v. British Columbia (2004), Mikisew Cree First Nation v. Canada (2005) and Beckman v. Little Salmon/Carmacks First Nation (2010) " the court has affirmed the Crown’s responsibility to consult with Aboriginal People when proposed actions will affect the latter’s interests. The duty to consult and, in certain circumstances, accommodate exists even when such responsibilities are not specified in a treaty. Consultations with Aboriginal people need to be respectful. They require lead time, advance notice and adequate opportunities to voice positions. The dialogue must be meaningful in the sense that the views presented are given full and fair consideration. These conditions were not met prior to the decision to allow seismic testing in Lancaster Sound. The federal government appears to have learned from the experience. The ministers were careful to stress the importance of consultation, partnerships and collaboration in their press release of December 6, 2010.
The decision of the Nunavut Court of Justice called into question the work of the review process set up under the Nunavut Land Claims Agreement. The Nunavut Impact Review Board (NIRB) is a quasi-judicial body that has been operating since 1993 as part of the land claims regime. It guarantees Inuit representation in preparations for resource development so it is valuable and needs to be respected. The court’s decision undermined the NIRB’s credibility and set an unfortunate precedent.
The NIRB has a good track record, approving some proposals for resource development and rejecting others. For example, it approved plans for the Meadowbank Gold Mine (2007) and Jericho Diamond Mine (2010). It rejected the 2004 application from Miramar Hope Bay Ltd. for the Doris North Gold Mine, on the grounds that the environment statement was inadequate. The NIRB’s decision was supported by the federal Minister of Indian Affairs and Northern Development and by the Nunavut Minister of the Environment. The company, for its part, accepted the verdict, reworked its submission and, in 2006, presented a revised document, including an improved environmental statement, which was subsequently approved. The NIRB is not a rubber stamp and, prior to August 2010, its decisions had been respected by the Nunavut government.
One consequence of having the NIRB " rather than the Canadian Environmental Assessment Agency " do the reviews is to limit the participation of non-local groups. It is too timeconsuming and expensive for most national environmental groups to attend hearings in Nunavut. For instance, Oceans North Canada was the only national NGO involved in getting the testing stopped in Lancaster Sound. The need to give priority to the views of local people " those most directly affected by the decisions taken " is obvious. Yet holding hearings in the Arctic may have the added consequence of privileging the voices of large mining and petroleum companies over those of national environmental NGOs, whose participation may be precluded by the exorbitant travel costs.
A resident judiciary is an important " but frequently overlooked " asset for northerners. The Nunavut Court of Justice was established to provide courtbased justice that is efficient, accessible and responsive to the unique needs of the territory. It has a mandate to hear any type of case that arises within the territorial boundaries. Judges who live in the North are likely to be better informed about local culture and lifestyles than their southern counterparts would be. In the Lancaster Sound judgment, Justice Cooper referred to irreparable harm, which is hard to prove. How can one say with certitude in advance of having conducted testing that the seismic gun would definitely harm the marine mammals on which the Inuit depend? The literature is inconclusive and research methods, such as flying over whales before and after the seismic guns are deployed to note changes in behaviour, are often not very rigorous by scientific standards. Yet the precautionary principle is important. If the tests had resulted in a subsequent decrease in the numbers or health of marine mammals in Lancaster Sound, irreparable harm would have been caused. If the Qikiqtani Inuit Association’s arguments had been made in the Federal Court of Canada, would there have been the same sensitivity to Inuit perceptions, culture and lifestyle? Would a federal court have been as culturally informed? Having the case tried in Nunavut probably worked to the advantage of the Qikiqtani Inuit Association and the Inuit communities of Lancaster Sound.
The case raises important questions. Why did the federal government choose a political rather than a legal solution? Why did the federal government not appeal the court decision? One might have expected the federal government to appeal the decision of the Nunavut court for several reasons.
First, Ottawa’s decision appears out of keeping with usual practice. Nunavut Tunngavik Incorporated has been involved in some half-dozen lawsuits with the federal government " some of which are ongoing. In several instances, when the federal government lost these types of cases, it appealed the decision. Second, the injunction set a precedent that could pose problems for the Geological Survey of Canada’s larger project to map the Arctic seabed. Third, the injunction had some international repercussions as the seismic testing involved a foreign ship. The Germans had gone through the standard procedures and secured approval for the tests. Allowing a territorial court to stop tests that the federal government has approved could prompt officials from other countries to wonder if the Canadian government has the authority to enter into agreements with them. Thus, there were international ramifications: embarrassment and a potential undermining of the Canadian government’s credibility abroad. Why then did the federal government not appeal in this case?
There are several possible answers. Perhaps the government thought it would lose the case on legal grounds. Prior to appealing a case, lawyers in the Department of Justice would be asked to conduct judicial analysis to determine if the federal government had a decent chance of winning (i.e., the federal government would not appeal if it thought it would lose). A judicial explanation does not seem plausible as the federal government did have good prospects of winning the case since approval had been given by the mandated authorities. Political factors offer a more plausible explanation. An appeal of the Nunavut court’s decision would likely have exacerbated the existing polarization between those who think no testing should take place (because it is the thin edge of the wedge en route to resource exploitation) and those who strongly favour testing (precisely because it is seen as a prerequisite for much-needed resource development). The hurried, poorly executed hearings fuelled existing perceptions that the testing was a prelude to oil and gas drilling. Timing worked against those favouring the surveys. Discussion about the seismic testing in Lancaster Sound coincided with the disastrous oil spill in the Gulf of Mexico and stories depicting the threats posed by drilling operations to the fragile Arctic environment abounded. Several major lawsuits involving Aboriginal rights are already being waged against the federal government and the visuals of having yet another one would have looked bad. In December 2010, the minority Harper government knew that an election could be called at any time. The further bad publicity that a legal appeal pertaining to the Lancaster Sound testing could have generated might have jeopardized the chances of re-election for Leona Aglukkaq, Minister of Health and Conservative MP for Nunavut. For all these reasons, it is likely that political assessments counselled against taking action that might have reflected negatively on the federal government.
Choosing a political route also had positive spinoffs for the Harper government: the opportunity to address previous shortcomings and to enhance its reputation. The press release of December 6, 2010, stressed the importance of consulting with Inuit communities and working cooperatively with their organizations. It placed a moratorium on testing " at least for the period of the consultations and potentially permanently " thereby defusing a major issue of contention. In demonstrating concern for Arctic ecology, the government was in all likelihood seeking to deflect attention from its poor environmental record.
The press release came just before the Environment Minister left for the international climate change conference in CancuÌn, Mexico. Since the Harper government came to power in 2006, Canada has been the four-time recipient of the Fossil of the Year (Colossal Fossil) award, which is given each year at the international conference on climate change to the country, deemed by some 500 environmental groups to have made ”œthe least constructive contributions to the negotiations.” The ministers’ announcement did not diminish the criticism of Canada at the December 2010 conference, nor did it prevent Canada from receiving the Fossil of the Year award again. It did garner significant media attention in Canada, thereby presenting a countervailing perspective " at least for the home audience " on the government’s record.
This case reinforces some important lessons. The need to consult Aboriginal people and to accommodate their interests is not only a legal requirement in Canada but also an ethical and a practical imperative. The territorially based impact review boards and courts are important to protecting and promoting the well-being of Arctic inhabitants; hence, their ability to function effectively must be safeguarded. Finally, resort to a political solution in this case served to defuse tensions, whereas a legal challenge might have intensified views and exacerbated the polarization. It enabled the federal government to avoid further bad publicity pertaining to the Lancaster Sound testing, to address key concerns of its critics and to convey positive messages reflecting concern for Nunavut inhabitants and the fragile Arctic ecology.