Court File No.: A-3 st1-\ ~ FEDERAL COURT OF APPEAL

HAMLET OF CLYDE RIVER, NAMMAUTAQ HUNTERS & TRAPPERS ORGANZATION- CLYDE RIVER, AND JERRY NATANINE

Applicants

-and-

TGS-NOPEC GEOPHYSICAL COMPANY ASA (TGS), PETROLEUM GEO-SERVICES INC. (PGS), MULTI KLIENT INVEST AS (MKI), and

THE ATTORNEY GENERAL OF CANADA

APPLICATION UNDER THE FEDERAL COURTS ACT, R.S.C. 1985, c. F-7, s. 28

NOTICE OF APPLICATION FOR JUDICIAL REVIEW

TO THE RESPONDENT :

Respondents

A PROCEEDING HAS BEEN COMMENCED by the applicants. The relief claimed by the applicant appears on the following pages.

THIS APPLICATION will be heard by the Court at a time and place to be fixed by the Judicial Administrator. Unless the Court orders otherwise, the place of hearing will be as requested by the applicant. The applicants request that this application be heard at Iqaluit, Nunavut.

IF YOU WISH TO OPPOSE THIS APPLICATION, to receive notice of any step in the application or to be served with any documents in the application, you or a solicitor acting for you must prepare a notice of appearance in Form 305 prescribed by the Federal Courts Rules and serve it on the applicant's solicitor, or where the applicant is self-represented, on the applicant, WITHIN 10 DAYS after being served with this notice of application. Copies of the Federal Courts Rules information concerning the local offices of the Court and other necessary information may be obtained on request to the Administrator of this Court at Ottawa (telephone 613-992-4238) or at any local office. IF YOU FAIL TO OPPOSE THIS APPLICATION, JUDGMENT MAY BE GIVEN IN YOUR ABSENCE AND WITHOUT FURTHER NOTICE TO YOU. Dated at Toronto, Ontario this 28th day of July 2014. Issued by:_____________________________________ (Registry Officer) Address of local office: 180 Queen St. W. Suite 200 Toronto, ON M5V 3L6 TO:

TGS-NOPEC Geophysical Company ASA (TGS) 2100, 250 – 5th Street SW Calgary, AB T2P 0R4 AND TO:

Petroleum Geo-Services Inc. (PGS) 15150 Memorial Drive Houston, TX 77079 United States of America AND TO:

Multi Klient Invest AS (MKI) 15150 Memorial Drive Houston, TX 77079 United States of America

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AND TO:

National Energy Board 444 Seventh Avenue SW Calgary, AB T2P 0X8

AND TO:

The Attorney General of Canada Department of Justice, Ontario Regional Office The Exchange Tower 130 King St. W., Suite 3400, Box 36 Toronto, ON M5X 1K6

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APPLICATION

This is an application for judicial review under section 28 of the Federal Courts Act for an order

quashing the June 26, 2014 decision of the National Energy Board (the “NEB”) to grant a

Geophysical Operations Authorization (“GOA”) to TGS-NOPEC Geophysical Company ASA

(TGS), Petroleum Geo-Services Inc. (PGS) and Multi Klient Invest AS (MKI) (collectively, “the

Proponents”) to conduct a 2D marine seismic survey in Baffin Bay and Davis Strait (the

“Project”).

THE APPLICANTS MAKE APPLICATION FOR:

1. An order in the nature of a writ of certiorari quashing the NEB’s decision to grant the

GOA to the Proponents to conduct 2D marine seismic survey in Baffin Bay and Davis

Strait;

2. An interim, interlocutory and permanent injunction restraining the Proponents from

commencing the Project;

3. A declaration that the NEB breached the terms of the Nunavut Land Claims Agreement

(the “NLCA”) by issuing the GOA for the Project;

4. A declaration that the NEB infringed the Applicants’ rights under section 35 of the

Constitution Act, 1982; and

5. Such other remedies as counsel may advise and this Honourable Court may permit.

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THE GROUNDS FOR THE APPLICATION ARE:

The Applicants

Hamlet of Clyde River

1. The Hamlet of Clyde River (in Inuktitut: Kanngiqtugaapik or ᑲᖏᖅᑐᒑᐱᒃ) is a hamlet

located on the shore of Baffin Island’s Patricia Bay, off Clyde Inlet, an arm of Davis

Strait in the Qikiqtaaluk Region, of Nunavut Canada. It lies in the Baffin Mountains,

which in turn form part of the Arctic Cordillera mountain range. The vast majority of

the residents of Clyde River are Inuit. The people of Clyde River have for millennia

relied on the marine mammals in the Baffin Bay and Davis Strait for their subsistence

and livelihood.

2. The Hamlet of Clyde River was among the groups listed as having been consulted by the

Proponents. The Hamlet Council submitted a letter of comment to the NEB opposing

the Project.

3. The Hamlet of Clyde River did not have party or intervenor status in the NEB

proceedings that are the subject of this judicial review, but the Hamlet and its residents

are directly affected by the Project and the NEB’s Decision.

Nammautaq Hunters and Trappers Organization – Clyde River

4. The Nammautaq Hunters and Trappers Organization – Clyde River (“HTO – Clyde

River”) is a Hunters and Trappers Organization (“HTO”) as defined in the NLCA.

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Under Article 5.7.1 of the NLCA, HTOs have a responsibility for managing and

harvesting wildlife on behalf of the community.

5. Further, pursuant to Article 5.7.15, “Where a right of action accrues to an Inuk, the HTO

of which that Inuk is a member may, with the consent of that Inuk, sue on that Inuk's

behalf.”

6. The HTO – Clyde River did not have party or intervenor status in the NEB proceedings

that are the subject of this judicial review, but the HTO – Clyde River and its members

are directly affected by the Project and the NEB’s Decision.

Jerry Natanine

7. Jerry Natanine is the Mayor of Clyde River. Mr. Natanine did not have party or

intervenor status in the NEB proceedings that are the subject of this judicial review, but

like all residents of Clyde River, he is directly affected by the NEB’s decision.

The Project and the NEB Decision

8. On May 17, 2011, the Proponents filed an application for a Geophysical Operations

Authorization (“GOA”) pursuant to s. 5(1)(b) of the Canada Oil and Gas Operations Act

(the “COGOA”), to conduct a 2D offshore seismic survey program in Baffin Bay and

Davis Strait over five years during the open water season.

9. Seismic testing is used to measure the presence of petroleum and natural gas in seas and

oceans. The seismic survey for this Project would involve a seismic ship travelling back

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and forth across Baffin Bay and Davis Strait, towing an array of airguns that produce

pulses of sound waves under the water.

10. The airguns are so loud that they penetrate through the ocean, and miles into the

seafloor, then bounce back, bringing information to the surface about the location of

buried oil and gas deposits. The reflected sound waves from the rock layers are detected

and recorded by listening devices on the streamers called hydrophones, which are also

towed by the seismic survey ship.

11. The loudness of the airguns is estimated to be 230 decibels at a distance of 1 meter

away, and will be repeated every 13 to 15 seconds, 24 hours a day while operating. The

Project would collect up to approximately 16,173 km of 2D seismic data.

12. The sounds produced by the airguns are louder than any sound experienced by human

beings. By way of example, normal conversation is generally between 60-65 decibels.

A snowmobile or motorcycle generates noise of approximately 100 decibels. A military

jet take-off generates noise of approximately 140 decibels. Sustained exposure at noise

levels of 90-95 decibels may result in hearing loss. Any sound in excess of 140 decibels

can cause permanent hearing damage in human beings even with hearing protection. A

sound of approximately 180 decibels will cause the death of hearing tissue. The

estimated sound of the airguns is 230 decibels.

13. The area of the proposed seismic testing is rich in sea mammals, including narwals,

bowheads, walruses, and seals. These mammals feed and migrate all along Baffin Bay

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and Davis Strait. Their food sources include, among others, shrimp and turbot. The

Baffin Bay and Davis Strait are also home to the Cold Water Corals, which are believed

to be the oldest living animals in the world and a habitat where fish and crustaceans live,

spawn and feed.

14. Unsurprisingly, seismic testing is harmful to marine life. The heavy sounds and

vibrations can cause permanent damage to marine animals. The scientific literature

documents significant impacts on marine mammals from seismic testing, including

permanent hearing loss, disruption of feeding, disruption of migration routes, harm to

social bonding and harm to reproductive rates and predator avoidance.

15. Any harm to marine life in the Baffin Bay and Davis Strait would directly affect the food

sources and livelihood of the Applicants and other Inuit of Nunavut. The marine

mammals of Baffin Bay and Davis Strait, including narwals, bowheads, walrus, and

seals, are staples of the Inuit diet.

16. The inability to harvest marine mammals would impact more than the just the diet of the

Inuit. The cultural tradition of sharing country food with others in the community would

be lost. The opportunity to make traditional clothing would be impacted. The

opportunity to participate in the hunt, an activity which is fundamental to being Inuk,

would also be lost.

17. The marine mammals on which the people of Nunavut rely depend on the smaller fish

and other ocean animals for survival. Thus, even if seismic testing directly affected only

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fish populations, any negative impact on these populations would have a domino effect

on the livelihood and well-being of the people of Nunavut.

18. The NEB conducted public meetings concerning the Project in Pond Inlet, Clyde River,

Qikiqtarjuaq and Iqaluit from 29 April to 2 May 2013.

19. Throughout the NEB process, the Hamlet of Clyde River and the Hunters and Trappers

Organization of Clyde River made it clear that they are not against all mineral, oil or gas

extraction. Indeed, the community is working closely with the Mary River iron ore mine,

which is in the early stages of development near the community. However, the

community of Clyde River has also made it clear that they cannot support

“development” at all costs. As such, the community will support extraction projects only

if shown that their traditional hunting economy and culture will not be substantially

harmed.

20. The Proponents, however, were unable or unwilling to show that the community’s rights

and interests would be protected. In its Environmental Assessment conducted in

connection with the Project, the NEB noted that the Proponents were “unable to answer

numerous questions from community members” about potential adverse impacts of the

Project on marine life and the community.

21. Indeed, during both the NEB public meetings and the community engagement events

organized by the Proponents, the Proponents were unable to answer even basic questions

about the impact of seismic testing on marine life; whether there were scientific studies

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concerning the immediate and long-term effects of seismic testing; and what (if

anything) the Proponents had learned about the environmental effects of seismic testing

during previous seismic surveys in Greenland and elsewhere.

22. In addition, under the COGOA, the Proponents are required to submit a Benefits Plan to

the Minister that will address, among other things, how the Project will benefit the

community. None of the affected communities has been shown a draft of the Benefits

Plan.

23. Despite the Proponents’ inability to answer basic questions about the adverse

environmental effects and although the people of Nunavut have not been advised how

the Project would benefit their communities, on June 26, 2014, the NEB issued the

GOA, subject to various reporting and monitoring conditions. The GOA permits the

Proponents to immediately begin seismic testing. The Proponents have advised the NEB

that they will initiate testing in 2015.

The NEB’s Decision Was Unreasonable Because It Failed to Adequately Account for Adverse Environmental Effects and Harm to Marine Life

24. The adverse environmental effects of the Project are potentially catastrophic.

25. In its Environmental Assessment, the NEB acknowledged that the seismic activity of the

Project could have significant adverse environmental effects, including:

a. Increase in greenhouse gases (GHGs);

b. Decrease in water quality;

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c. Sensory disturbance for marine mammals;

d. Permanent hearing impairment for marine mammals and fish;

e. Disruption of migration routes;

f. Disturbance to traditional and commercial resources; and

g. Adverse changes to the ecosystem and marine life due to spills or accidents.

26. The Proponents have proposed “mitigation measures” to limit these and other harms.

The NEB, however, did not require that the Proponents provide any scientific evidence

that these mitigation measures would be effective. Nor have the Proponents provided

any such evidence.

27. Despite the absence of scientific evidence that the mitigation measures will be effective,

and despite the potentially catastrophic environmental consequences on the marine life

and people of Nunavut, the NEB granted the GOA. This decision was unreasonable.

The NEB Erred by Failing to Consider IQ or Traditional Knowledge

28. The NEB also ought to have considered Inuit Qaujimajatuqangit (“IQ”) and traditional

knowledge about the Baffin Bay and Davis Strait and its wildlife when assessing

potential adverse effects and proposed mitigation measures.

29. The Proponents acknowledged that their initial design of the Project was deficient and

promised to incorporate IQ and traditional knowledge in its operation of the Project.

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They did not, however, identify how they would use IQ or traditional knowledge nor did

they take any concrete steps to amend the Project proposal. The NEB’s failure to insist

that the Proponents incorporate IQ before approving the GOA was unreasonable.

Failure to Consider the Importance of the Strategic Environmental Assessment and Cumulative Impacts

30. A number of Inuit groups and associations, including the Qikiqtani Inuit Association,

which, under the NLCA, represents 13 communities in the Qikiqtani region, urged the

NEB to postpone its decision regarding the Project until a Strategic Environmental

Assessment (“SEA”) for Baffin Bay and Davis Strait could be completed by Aboriginal

Affairs and Northern Development Canada (“AANDC”). The AANDC had begun the

SEA process in early 2014.

31. The completion of an SEA prior to the approval of seismic testing is essential. There is

currently a lack of baseline data on the ecology of the Project area, making it impossible

to make informed and responsible policy decisions about extractive activities in the area.

An SEA would contribute to the collection of this baseline data, and allow regulators to

impose sensible restrictions. The NEB’s refusal to consider postponing the GOA until

completion of an SEA was manifestly unreasonable.

32. The NEB also erred by refusing to consider the cumulative effects of the Project.

Seismic testing is the first step towards further oil exploration and extraction. The

exploitation of oil in Nunavut carries with it additional environmental risks, including oil

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spills and increased shipping into the area. The NEB failed to consider any of these

effects.

The NEB’s Decision Undermines Inuit Rights Under the Nunavut Land Claims Agreement (“NLCA”)

33. The Inuit have lived, hunted and thrived in Canada’s Northern regions for millennia.

34. The Inuit possessed Aboriginal Title in these lands. In 1993, the Inuit of the Nunavut

Settlement Area (“NSA”) surrendered Aboriginal Title in the NSA in consideration of

the treaty rights conferred by the NLCA. The NLCA was ratified by Parliament under

the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.

35. By virtue of s. 6 of the Nunavut Land Claims Agreement Act and s. 35 of the

Constitution Act, 1982, the NLCA is paramount to any federal law. Accordingly, the

NLCA fetters the NEB’s jurisdiction to the extent that an NEB decision affects rights,

entitlements and privileges afforded Inuit under the NLCA.

36. The purposes of the NLCA are set out in its Preamble. They include the following

objectives:

“to provide for certainty and clarity of rights to ownership and use of lands and resources, and of rights for Inuit to participate in decision-making concerning the use, management and conservation of land, water and resources, including the offshore;

“to provide Inuit with wildlife harvesting rights and rights to participate in decision-making concerning wildlife harvesting….”

37. The NEB took the position that because the Project’s seismic testing takes place outside

of the NSA, then the NLCA does not apply.

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38. This is incorrect. The NLCA confers rights that extend beyond the NSA. Article 3.5.1

of the NLCA provides: “For greater certainty, Inuit shall enjoy additional rights to areas

outside the Nunavut Settlement Area as stipulated by other provisions of the

Agreement.”

39. Chief among these others provisions is Article 15. This provision sets out a substantive

duty on the Crown to consult with the Nunavut Wildlife Management Board (“NWMB”)

regarding marine areas outside the NSA before undertaking any project or issuing any

licence.

40. Article 15.3.4 of the NLCA provides in relevant part:

Government shall seek the advice of the NWMB with respect to any wildlife management decisions in Zones I and II which would affect the substance and value of Inuit harvesting rights and opportunities within the marine areas of the Nunavut Settlement Area. The NWMB shall provide relevant information to Government that would assist in wildlife management beyond the marine areas of the Nunavut Settlement Area.

41. The definitions section of the NLCA defines “Zone I” as the waters of Davis Strait and

Baffin Bay north of 61 degrees latitude subject to Canada’s jurisdiction seaward of the

Territorial Sea boundary.

42. The Project will be located in Zone I. Accordingly, Article 15 of the NLCA applies.

The NEB did not consider the impact of the Project on the Applicants’ Article 15 NLCA

rights anywhere in its Environmental Assessment or in its June 26, 2014 decision.

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Breach of the Duty to Consult and Accommodate

43. Under s. 35 of the Constitution Act, 1982, the Crown has a constitutional duty to consult

and accommodate where an Aboriginal right or treaty right may be impacted.

44. The NEB is a quasi-judicial tribunal and operates much like a court. As such, the NEB

itself cannot engage in meaningful consultation or accommodation. But the NEB must

consider whether the Crown has satisfied its duty to consult and accommodate before it

issues a GOA that affects Inuit rights. It failed to do so in this case. Instead, the NEB

concluded that the Crown’s duty to consult and accommodate had been met by the

Proponents’ meetings with Inuit associations. The Crown, however, is not permitted to

delegate the duty to consult and accommodate to the oil industry.

45. The Crown’s duty to consult is a constitutional obligation invoking the honour of the

Crown. Where there is a substantive duty to consult, as there is here, the Crown cannot

discharge by delegating that duty to non-governmental third parties.

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THE APPLICANTS RELY ON THE FOLLOWING STATUTORY PROVISIONS:

1. Section 28 of the Federal Court Act, R.S.C. 1985, c. F-7.

2. Section 5.31(3) of the Canada Oil and Gas Operations Act, R.S.C., 1985, c. 0-7.

3. Section 35 of the Constitution Act, 1982 (Schedule B ofthe Canada Act 1982 (UK)).

4. Sections 5 and 6 of the Nunavut Land Claims Agreement Act, S.C. 1993, c. 29.

5. Such other authorities as counsel may advise and this Honourable Court may permit.

THIS APPLICATION WILL BE SUPPORTED BY THE FOLLOWING MATERIAL:

1. The Affidavit of Jerry Natanine and exhibits thereto;

2. Materials filed with the NEB in connection with the Project; and

3. Such other documents as counsel may advise and this Honourable Court may permit.

Dated at Toronto, Ontario this 28111 day of July, 2014.

RUBY SHILLER CHAN HASAN Barristers 11 Prince Arthur Ave. Toronto, ON M5R I 82

·Nader R. Hasan (LSUC #54693W) T: 416.964.9664 F: 416.964.8305 E: nhasan@rubyshiller.com

Counsel for the Applicants

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HAMLET OF CLYDE RIVER, NAMMAUTAQ HUNTERS & TRAPPERS ORGANZATION - CLYDE

RIVER, AND JERRY NATANINE -and-

Applicants

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Court File No.

TGS-NOPEC GEOPHYSICAL COMPANY ASA (TGS), PETROLEUM GEO-SERVICES INC. (PGS), MULTI KLIENT INVEST AS (MKI), AND

THE ATTORNEY GENERAL OF CANADA

Respondents

FEDERAL COURT OF APPEAL

NOTICE OF APPLICATION

RUBY SHILLER CHAN HASAN Barristers 1 l Prince Arthur Ave. Toronto, ON M5R 1B2

Nader R. Hasan (LSUC #54693W) T: 416.964.9664 F:416.964.8305 E: nhasan@rubyshiller.com

Counsel for the Applicants