Arctic Yearbook 2015 - Page 219

219 Arctic Yearbook 2015 Public and indigenous participation: accession, ratification and interpretation Several international legal instruments are relevant when it comes to public and indigenous peoples participating in consultation processes or decision-making related to offshore oil and gas activities: the UNDRIP and the Aarhus Convention are two of these instruments, and they incite various interests amongst Arctic states. In the Aarhus Convention, which aims at guaranteeing access to information, public participation and access to justice in environmental matters, Denmark made a reservation for Greenland. Whereas the Self-Rule government of Greenland has competences over the development of natural resources, and whereas the content, form and practice of consultation processes are criticised in Greenland (Olsen & Hansen 2014), this reservation was questioned in the Greenlandic Parliament. The Self-Rule government consequently commissioned a report to assess the conditions under which Greenland could accede to the Convention. A 199-page report was submitted to the government of Greenland in May 2014 and should be presented to the parliament. In June 2014, the government of Greenland proposed amendments to the 2009 Mineral Resources Act in order to reduce public access to documents for the purpose of making decisions pursuant to the Act. Finally, after much concern in Greenland about the issue, the restriction of access has been removed from the proposed amendments on pre-consultation and consultation. Canada endorsed the UNDRIP in 2010 and announced it would do it “in a manner fully consistent with Canada’s Constitution and laws” (Canada 2010). This conditional endorsement has been critically analysed by legal scholars as being inconsistent with the principle of good governance; Joffe deems it undermines the status of this vital instrument and prevents its application whereas the “Declaration can be effectively used in litigation in Canadian courts” (Joffe 2010). Recently, a case was brought before the Supreme Court of Canada regarding seismic tests in Nunavut. The Hamlet Council of Clyde River, its Mayor and the Hunters and Trappers Organization-Clyde River tried to reverse a 2014 National Energy Board (NEB) decision to allow a consortium of three seismic companies7 to survey in Baffin Bay and Davis Strait, to determine if there is any potential for oil and gas extraction (Federal Court of Appeal 2014). The plaintiffs argued that seismic tests could impact upon marine mammals which the Inuit rely on for subsistence. The rights of indigenous peoples are protected in Canada in the Constitution and through court decisions, as developed further in the second part of the article dealing with interactions between the federal and territorial level in Nunavut. In the case of Clyde River, the judge, who did not cite the UNDRIP, concluded on the issue of consultation that the Crown had fulfilled its duty to consult and the consultation was properly conducted: “The consultation process does not dictate a particular substantive outcome. Thus, the consultation process does not give Aboriginal groups a veto over what can be done with land pending proof of their claim. Nor does consultation equate to a duty to agree.”8 The judge dismissed the application for judicial review. By contrast, the UNDRIP contains provisions on reaching the consent of indigenous peoples. Article 19 indicates that the consultation should result in a “free, prior and informed consent before adopting and implementing legislative or administrative measures that may affect them.” Some legal scholars deem that due to the normative pressures from the international community, the non-consideration Cécile Pelaudeix