Opinion | Inuit concerns over seismic testing in Canada’s part of the Baffin Bay are being brushed aside, putting not just the Arctic at risk, but also the right of the people who live there to decide for themselves
The tiny Inuit community of Clyde River, Nunavut, is heading to court to fend off unwelcome oil exploration in Baffin Bay and Davis Strait, a precedent-setting move in the struggle to defend Inuit self-determination and the Arctic environment against reckless oil and gas development. Helping to facilitate the rapacious pursuit of northern fossil fuel resources is the National Energy Board (NEB), whose discretionary authority has expanded as environmental legislation has weakened under the Conservative government.
The NEB is meant to be an arms-length tribunal (but in reality is decidedly pro-industry) created by the federal government to regulate inter-jurisdictional energy development, such as pipelines that cross provincial boundaries. The NEB also has a large role north of the 60th parallel, and, in the Clyde River case, has shirked responsibility to other regulatory bodies governing the Nunavut Settlement Area, whose boundaries fall just short of the project area. NEB decisions are meant to be unbiased and are equivalent to the judgements of superior courts, but under its watch, serious environmental and socioeconomic risks posed by Arctic seismic testing appear to have been disregarded.
Threats to environment rebuffed
The proposed project will see boats travelling the Arctic waters of Baffin Bay and Davis Strait towing air gun emitting sound blasts 100,000 times louder than a jet engine, every 13 to 15 seconds, 24 hours a day, for five months of the year for five consecutive years. In the environmental assessment report released as justification for the NEB’s approval of the project, the board acknowledged such dangers to marine life as permanent hearing loss, disruption of acoustic communication, behavioural change and altered migration routes, but accepted that the mitigation measures proposed by the proponent would be sufficient. However, key information about the risks and the efficacy of the mitigation measures were missing.
For example, according Dr Linda Weilgart, a marine biologist with expertise on the impacts of sound on marine life, Arctic marine mammals may be particularly vulnerable to the blasts due to their lack of previous exposure and their reliance on echolocation to find breathing holes in the ice. A 2012 peer-reviewed study affirms the possibility of particular sensitivity in narwhals, and identifies seismic testing as the likely cause behind the deaths of 1,000 narwhals trapped under the Arctic ice in 2008. In addition, residents of Clyde River and Pond Inlet recall first-hand encounters with animals affected by previous oil exploration projects, such as seals who were deaf or whose ears were bleeding. All of this information was missing from the EA report.
Scientific evidence suggests that underwater seismic blasts can raise noise levels by a factor of 100 over 300,000 square km and be heard 4,000km away from the vessel. This information was not considered in the EA report. On the contrary, the NEB accepts that risk to marine mammals will be mitigated primarily through the employment of Marine Mammal Observers (MMOs) who scan the surface of the water and order the withholding of blasts if they see animals swim into the 500m-radius “safety zone”.
The ability of MMOs to detect animals within the safety zone is dubious, let alone to recognise injuries or to supervise 300,000 square km of potentially affected waters. Further, there is no plan to monitor for harm to marine life after testing is over or outside the project area.
The NEB regulatory review also puts the Arctic environment at risk in its blindness to the bigger picture, adapting a narrow “case-by-case” approach that neglects cumulative impacts and climate change, and completely ignores the connection between seismic testing and the fossil fuel development for which the data is intended. These concerns were repeatedly dismissed in the EA report, in consultation with Inuit, and in the refusal to withhold project approval until the completion of the broader strategic environmental assessment currently collecting baseline data on the regional environment.
Inuit rights swept aside
Indigenous rights are protected under the Canadian constitution, and in Nunavut, the Inuit right to harvest wildlife is further safeguarded by the Nunavut Land Claims Agreement (NLCA), negotiated between the government of Canada and the Inuit who live there. When considering a decision that may adversely impact their rights, such as the approval of a resource development proposal, the crown has a legal duty to consult with indigenous peoples meaningfully, in good faith, and with the overarching goal of reconciliation.
Under Canadian law, the depth of consultation required depends on two factors: the strength of the indigenous claim to the rights in question and severity of the potential impact. Since the rights of Clyde River Inuit are enshrined in the NLCA, the strength of their claim to them is indisputable. Further, because the risk to the marine environment is significant and marine life is so critical to the economy and culture of Clyde River, the project’s potential impact is serious. Therefore, the crown is responsible for extensive dialogue with potentially affected communities.
Nevertheless, ineffective meetings planned by consultants contracted by the proponents have left Baffin Island Inuit disillusioned and embittered. At the meetings, residents encountered company representatives who gave incomprehensible presentations, were unable to answer basic questions about the project and its potential impact on marine animals, could not offer an accessible source of more information, had no decision-making power themselves, appeared to assume project approval and repeatedly deflected the communities’ concerns. At times, residents were required to submit commentary within a short period and without all the facts, including plans for what benefits, if any, the communities would accrue in return for their agreement to shoulder the burden of risk. At every meeting, residents expressed frustration and their opposition to a project that could not offer basic protection for their millennia-old way of life.
The NEB overrode these concerns, and, in fact, failed even to mention the constitutionally protected rights of Inuit or the legal requirements of the duty to consult in its EA report. The Canadian government, meanwhile, sidestepped responsibility despite vocal criticism of the consultations from Inuit organisations and the fact that the duty is legally the crown’s, not the NEB’s.
Development on whose terms?
The Clyde River case raises serious questions about the NEB’s regulatory regime in the Arctic, including its rightful role in discharging the crown’s duty to consult with indigenous peoples.
Members of the Clyde River community have made it clear that opportunities for economic development are needed and wanted, but must not come at the expense of Inuit self-determination or the marine environment on which Baffin Island communities have depended for thousands of years. If Clyde River claims victory in court, their struggle to stop the NEB process from running roughshod over their rights will set an empowering precedent for northern peoples refusing to become sacrifice zones in the scramble for northern resources.
Ramifications could even extend beyond Canadian borders to Arctic nations such as the United States, Russia, Norway, Sweden and Finland where Inuit, Gwich’in, Saami and other indigenous peoples are fighting to protect their way of life from irresponsible fossil fuel development and the disproportionately severe northern impacts of climate change.
The author is a master’s candidate at York University researching Colonialism and Extractive Industries in Canada.