Issue revolves around duty to consult and accommodate

THUNDER BAY - Two First Nations in the District of Thunder Bay want a court to declare that maintenance work on an existing pipeline through their territories requires that they be consulted and accommodated in advance.

The issue first came to light about a year ago after Ginoogaming and Aroland First Nations launched a lawsuit and injunction motion against TransCanada, the federal government and the National Energy Board.

The two communities maintained that "integrity digs" by TransCanada along a 30-kilometre stretch of its natural gas pipeline would impact their treaty rights to hunt, fish, trap, and gather plants and medicines, as well as potentially damage burial grounds and other cultural heritage sites.

The company said at the time that the maintenance work was required to ensure safe and reliable service.

Although the First Nations decided to abandon their bid for an injunction against the work, they are now asking for a Superior Court declaration with respect to two elements of their Statement of Claim.

They want a declaration that the National Energy Act Regime is unconstitutional because "it purports to authorize actions, including pipeline operations and maintenance....that could have adverse effects" on Aboriginal or treaty rights without first requiring consultation.

They are also seeking a declaration that they are at least owed the duty to be consulted and accommodated about maintenance digs, even though the pipeline was built prior to that duty being enshrined in law.

Their request for summary judgment on these two issues is scheduled to be heard in Superior Court in Toronto in June. A motion for summary judgment asks a court to decide a case—before trial— in favour of the party making the motion.

A lawyer for the communities has said that if the motion is successful, the remedy will be compensation for damages.

The original lawsuit asked for $40 million in damages plus an additional $20 million in the event that the injunction to stop the maintenance work was not granted.