THUNDER BAY — Two First Nations in the District of Thunder Bay are set to resume a court case involving their right to be consulted about the maintenance of an existing pipeline crossing their traditional territories.
Lawyers for Ginoogaming and Aroland this week will ask a Superior Court justice to issue a summary judgment—a judgment without a full trial—on the issue of integrity digs.
Integrity digs are maintenance work which may involve inspecting, repairing or replacing parts of an existing pipeline.
The two First Nations are seeking a precedent-setting decision against TransCanada Pipelines, the National Energy Board and the federal government, requiring that, in the case of older lines built before the legal duty to consult and accommodate Indigenous people, any new activity that causes physical impacts must trigger the consultation duty.
"There is a big hole in Canada's law about the duty owed to First Nations to consult with them and accommodate their concerns about impacts to their lands, rights and cultures before engaging in activities that threaten them," said lawyer Kate Kempton of OKT Law.
"If Canadian law can't recognize that this kind of accumulating harm—death by a thousand cuts—can't continue to happen without first ensuring that First Nations have to be consulted and protected, then something is quite wrong here," Kempton said.
The First Nations have stated in the past that maintenance work not only damages the land but also impacts their rights to hunt, fish and trap, and their right to protect burial grounds and other cultural heritage sites.
TransCanada has previously said maintenance is required so that it "can continue to safely transport natural gas to heat homes, schools, hospitals, and businesses."
In a statement late Tuesday afternoon, the company added that "the Duty to Consult on integrity work...is primarily a discussion between the Crown and the First Nations. We will await the outcome of the case."
Three days are set aside for the hearing, starting Wednesday, June 6.
