Lawsuit and injunction application brought by First Nations in Ontario against TransCanada Pipelines for work on the same line to be converted for the Energy East Project
Two First Nations in northwest Ontario – Aroland and Ginoogaming – have just launched a precedent-setting lawsuit and injunction motion against TransCanada Pipelines, Canada and the National Energy Board, for doing and allowing damaging physical work on parts of the Mainline pipeline that runs through those First Nations’ traditional territories. This is the same pipeline that TransCanada, through its affiliate Energy East, is applying to convert from natural gas, to carry dilbit (crude oil) from the Alberta oil sands across Canada and into ships for export.
The injunction hearing is slated to be heard on January 25 at the Ontario Superior Court, in Toronto.
The physical work that the First Nations are seeking to stop – at least until the duty to consult and accommodate them about their constitutionally-protected rights is met – is called “integrity digs”. TransCanada intends to bring in heavy equipment and dig up a lot of land and expose the buried pipeline in a 30 km stretch that runs through those Nations’ traditional territories. TransCanada says it needs to do this to check and possibly repair the pipeline. TransCanada’s notice to the NEB says it intends to start the integrity digs work on January 18, but it has agreed to hold off until January 25. It also says it will continue this work up to July 18 2017.
“TransCanada is trying to push ahead with this intrusive work before the duty to consult and accommodate is met,” says Raymond Ferris, an employee working for the First Nations. “Neither they, nor the NEB, nor Canada, even admit that a duty to consult and accommodate under the Constitution is owed. TransCanada seems to take the position that since the pipeline was approved and first built starting in the late 1950s, before aboriginal peoples’ rights were ever considered, that any physical work on the land about the pipeline can be done without respecting such rights under the law today.”
“The integrity digs work will likely cause impacts on aboriginal and Treaty 9 rights to harvest (hunt, fish, trap, gather plants and medicines etc) and to protect burial grounds and other cultural heritage sites and values. They will cause impacts to the First Nations’ culture, sacred relationship to the land that is at the core of their identity as indigenous communities, and on their ability to continue to survive with the land,” says Kate Kempton, lawyer for the First Nations.
“Canadian law should require the First Nations’ consent before such activity can proceed, in accordance with the UN Declaration on the Rights of Indigenous Peoples. Canadian law is lagging behind where it needs to be in that regard. But at the very least, it requires meaningful consultation and accommodation sufficient to address the First Nations’ concerns,” says Kempton. “If Canadian law is not explicit that such requirements exist for new work on old pipelines approved in a bygone era, then it needs to be made explicit. We are pursuing such an explicit remedy here. In the lawsuit, we’re seeking declarations that the NEB Act regime which governs these pipelines, has to prohibit activities that infringe aboriginal and treaty rights. We are seeking an injunction to stop the planned integrity digs in the meantime.”
“Otherwise,” says Ferris, “pipeline companies can do pretty much what they want to First Nation lands, rights and cultures. We can’t let that continue. It defeats reconciliation. It further pushes down First Nations. How much further do we have to be pushed?”
One issue in the injunction motion is whether TransCanada is seeking to do the integrity digs work more to prepare the pipeline to be converted to carry crude oil for the Energy East project — which is far from being approved – as compared to any need to do the work to maintain the physical integrity of the pipe to carry natural gas, which is what is may be carrying now.
“We don’t know if any gas is currently moving through the pipeline right now. We haven’t been able to find that out, despite repeated requests,” says Ferris. “If it is, then since TransCanada first asked to do the integrity digs many months ago, they should have already consulted and accommodated the First Nations. The fact that no one has, is not a burden that the First Nations should bear, and is not an excuse to allow this work in defiance of the First Nations’ rights now. If the line is not carrying any gas, then why would TransCanada need to do any physical work to repair something that is now empty?”
“The NEB regime has to grow up to meet the requirements of aboriginal and treaty rights. If we don’t actually honour these rights, then they are rendered meaningless. Surely this is not what the federal government intends when it speaks of the need to bring about true reconciliation with the First Peoples through whose trust and through treaties the rest of the Canadian population came to live here,” says Kempton. “We’ll see what the court will do about this.”
SOURCE Aroland First Nation
TORONTO — Two indigenous communities in northern Ontario are suing TransCanada in a bid to expand the pipeline consultation process to include maintenance operations.
TransCanada wants to conduct what it calls integrity digs on a nearly 30-kilometre stretch of natural gas pipeline that runs through traditional territories of the Aroland First Nation and Ginoogaming First Nation.
The First Nations allege in their multimillion-dollar suit that TransCanada should hold consultations even when conducting maintenance operations like integrity digs on pre-existing lines.
They say the company violated their Aboriginal Treaty Rights by failing to do so in this case.
They also name the National Energy Board and the federal government in the suit and allege that the NEB Act regime that governs pipeline operations is unconstitutional because it could potentially infringe on treaty rights.
The First Nations are also seeking an injunction on the integrity digs, which are scheduled to start on Jan. 25, the same day the injunction motion is to be heard in a Toronto court.
Lawyer Kate Kempton, who is representing the First Nations communities, said the lawsuit and injunction are matters of principle.
“Neither the NEB nor Canada has required (TransCanada) to carry out their responsibilities, and neither has the NEB nor Canada carried out theirs, in respect of consulting and accommodating Aroland and Ginoogaming about the physical impacts … of the integrity digs,” Kempton said in a telephone interview. “That’s part of making sure that aboriginal rights are not unjustly infringed, and that hasn’t been done.”
The National Energy Board did not immediately comment on the suit, but TransCanada spokesman Shawn Howard said the company feels it should have the right to proceed with integrity digs as scheduled.
“TransCanada has been safely transporting natural gas through these pipelines to heat Canadians’ homes, schools, hospitals, businesses and communities since they were approved decades ago,” Howard said in a statement. “Carrying out regular maintenance on our pipeline infrastructure is in everyone’s interest and part of being a responsible operator.”
Howard also refuted the First Nations’ claim that the digs are meant to prepare the pipeline for TransCanada’s controversial Energy East pipeline, which, if approved, could start carrying oil from Alberta to New Brunswick.
According to the statement of claim, TransCanada first announced its intention to perform the digs in late 2015, but met with resistance from the communities.
Both Aroland and Ginoogaming had questions as to whether the digs were meant to prepare the pipelines running through their territories for integration into the Energy East project.
Howard said the two lines in question are earmarked for natural gas only and are not part of the current Energy East proposal.
The suit alleges that TransCanada never answered the questions put to them and gave official notice just last month that the digs were to get underway in 2017.
The lawsuit focuses on historical issues as well as the present-day concerns around the integrity digs.
It claims the NEB and Canada failed by not consulting with the indigenous communities at the time the pipelines were built and is seeking damages accordingly.
“The plaintiffs continue to bear the burden of risks of spills, leaks and explosions from the (pipeline), and other impacts from the (pipeline), within their traditional territories,” the statement reads. “Numerous impacts on their known and asserted Aboriginal and treaty rights have occurred from the (pipeline) over the years. The digs would add to the cumulative effects of those other impacts.”
The suit seeks $40 million in damages plus an additional $20 million if an injunction to stop the integrity digs is not granted.