Clyde River granted leave to appeal to Supreme Court on seismic testing

The Nunavut hamlet of Clyde River has been granted leave to appeal their case against seismic testing to the Supreme Court of Canada.

Last year, Clyde River lost its case with the Federal Court of Appeal to stop seismic testing in the remote northern hamlet. It filed an application for leave to appeal to the Supreme Court of Canada in October of 2015.

"With all the support we have behind us, we were able to file to Supreme Court and now they've accepted and it's unbelievable. It's totally unbelievable that they've agreed," said Jerry Natanine, the former mayor of Clyde River.

• Clyde River loses fight to block seismic testing
• Clyde River wants Supreme Court to weigh in on seismic testing

Clyde River says the scientific evidence surrounding seismic testing is inconclusive, and fears the loud, high-intensity sounds used to help map the sea floor in the tests would disturb or harm seals, whales, walrus and other marine mammals relied upon by the locals for food.

For more than a year, the small Nunavut community has been the underdog in a legal battle to stop a consortium of international companies from conducting the controversial tests off the coast of Baffin Island. The consortium was issued a testing permit by the National Energy Board. Clyde River went to court, seeking a judicial review of the permit. 

"The David and Goliath scenario didn't really sink in at first because we were fighting for our way of life and our livelihood and the animals we hunt and live off from," said Natanine.

"But as things progressed and we started learning about exactly what the case is and what it's going to involve, we started seeing what kind of underdogs we were."

The case has received considerable attention, and Clyde River has been publicly supported by celebrities like Lucy Lawless and Naomi Klein.

Duty to consult aboriginal communities

The legal case is centred on a question regarding the duty of the Crown to consult and accommodate aboriginal communities on concerns related to the potential effects of the testing on their aboriginal and treaty lands.

In the Federal Court of Appeal's August decision denying the hamlet's request for a judicial review, Justice Eleanor Dawson said the board fulfilled requirements to consult with local Inuit and that consultation doesn't necessarily mean agreement.

"Indigenous rights should be a bedrock that do not live and die depending on the political whim of the day," said Jessica Wilson from Greenpeace Canada.

Greenpeace has been partnering with Clyde River to attempt to block the testing off the coast.

"If we can get a ruling that supports Clyde River and supports sovereignty and the right to decide this could be huge," said Wilson. "It could change everything, really."

A whole new ball game 

"The Supreme Court of Canada only takes a small number of cases every year," said Nader Hasan, the lawyer representing Clyde River in this case.

"No one has an automatic right of appeal to the Supreme Court of Canada so even if you lose at the Federal Court of Appeal, or Nunavut Court of Appeal, or Quebec Court of Appeal you don't get an automatic right to ask the Supreme Court of Canada to hear your case."

Hasan explained that only five to 10 per cent of the cases that apply to the Supreme Court are granted a hearing.

"It's a whole new ball game now," he said.

"We may have lost at the National Energy Board level, we may have lost at the Federal Court of Appeal level, but that's the regular season and now it's the playoffs, the only thing that matters going forward is what the Supreme Court of Canada says."    

Right now, there's no injunction in place, and seismic testing in Clyde River is scheduled to begin this summer.

Hasan said, given today's decision, he will be reaching out to legal counsel for the companies to ask them to put their plan on hold.

If the companies refuse, Hasan will bring an application to the Supreme Court for an order to preserve the status quo on the ground - meaning that no tests can be done until a final decision is rendered by the Supreme Court on this case.

The company has already postponed its planned work twice.