August 17, 2015

Duty to consult: Hamlet of Clyde River v TGS-NOPEC Geophysical Co. ASA (TGS)


Clyde River, an Inuit hamlet, applied for judicial review of a decision by the National Energy Board (the “Decision”) authorizing an offshore seismic survey program in the Baffin Bay and the Davis Strait (the “Project”). The people of Clyde River rely on marine mammals for food security, and were concerned the Project would have negative impacts on the ecosystem and the marine mammals. They asked for a Strategic Environmental Assessment (“SEA”) to develop baseline data on the ecology of the Project area. The NEB disagreed however on the need for an SEA. On judicial review (directly to the Federal Court of Appeal), Clyde River argued the NEB erred in authorising the project, and the Crown failed to fulfill its duty to consult.

The Federal Court of Appeal held the NEB did not err in authorizing the project, and gave sufficient reasons to support its decision. The court also held the Crown fulfilled its duty to consult. The court reasoned that consultation does not require agreement, and as a result, the SEA was not required for the duty to consult to be met. The court also reviewed the NEB’s consultation record and determined that, on the facts, the NEB’s consultation process was sufficient to fulfill the Crown’s duty to consult.

Hamlet of Clyde River v TGS-NOPEC Geophysical Co. ASA (TGS), 2015 FCA 179

Lisa C. Fong, Michael Ng, and Siddharth Akali