A major legal challenge to a controversial National Energy Board decision will soon be heard in court. This one’s going to make history: It’s the first true grassroots opposition to Canada’s drive to drill for oil in the Arctic, and its pushing back against an NEB that is wilfully ignoring Aboriginal Canadians’ rights to free, prior and informed consent.

This past July, the Hamlet of Clyde River and the Nammautaq Hunters and Trappers Organization filed a claim at the Federal Court of Appeal disputing a decision by the NEB to permit seismic testing in Baffin Bay and the Davis Strait. The seismic testing — intended to map oil and gas deposits — is to be executed by the Norwegian TGS-Nopec Geophysical Company (TGS), Petroleum Geo-Services Inc. (PGS) and a local subsidiary called MultiKlient Invest AS (MKI).

The plaintiffs fear these activities might destroy the wildlife that Inuit people depend on for subsistence and income. The people of Clyde River also argue that they had not been properly consulted before authorizations were issued.

In October, the NEB requested that the Court accept a submission to intervene in the judicial review process as a third party. The NEB’s motion materials do not provide any detail on what these submissions might be — and the pertinence of this unusual request from the NEB is questionable.

One of the basic principles in western law is ne bis in idem, or “not twice the same thing.” Here’s what it means: It’s impossible for any judicial body to decide twice on the same case. Once a tribunal renders its decision, it’s final. Should a review of the verdict take place, it must be carried out by a new and objective arbiter. So the request by the NEB for permission to revise its own ruling violates this principle.

The case of Clyde River vs. the NEB could end up redefining the future of all drilling in the Canadian Arctic and beyond.

Another disheartening element in this case relates to PGS’s request to strike two of the five affidavits the applicants submitted. Surprisingly, the two affidavits to which PGS objects are the very ones bringing new scientific research and evidence to the court’s attention.

The author of one of those affidavits is a McGill University professor who, for more than 30 years, has studied and written books about the importance of marine mammals to the people, culture and economy of North Baffin, specifically in Clyde River. The second was authored by a Dalhousie University marine biologist and expert in bioacoustics. The other affidavits address cultural issues.

While PGS is trying to get this evidence struck from the record, the company also seems to be monopolizing and restricting the scientific studies to be considered by the court. PGS’s request sends out an unacceptable message: that Inuit populations should only talk about their cultural, economic and social concerns, and that science is the chasse gardée of private companies and the government.

The case of Clyde River vs. the NEB could end up redefining the future of all drilling in the Canadian Arctic and beyond. If the court renders a decision favorable to the claimants, it will create jurisprudence that no other court will be able to overlook. The right to be consulted is at the centre of this legal case; a victory for Clyde River would affirm that offshore oil and gas development can only proceed on residents’ terms.

The essence of this case is respect for the basic legal principles upon which transparency and judicial independence are founded — as well as Clyde River’s right to submit all pertinent evidence.

Inuit populations in Canada have a long history of suffering and privation. Their rights were ignored and their voices went unheard for decades. This is why we must now say ne bis in idem: Never twice, never again.

Nader R. Hasan is a partner at Ruby Shiller Chan Hasan. He specializes in criminal and constitutional litigation at both the trial and appellate levels. He represents the community of Clyde River in this case. Jerry Natanine is the mayor of the Inuit Hamlet of Clyde River in Nunavut.

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