THUNDER BAY – LEGAL – Two First Nations in Ontario – Aroland and Ginoogaming – are in court starting this Wednesday, June 6, to seek a new precedent about their rights to be consulted and accommodated. TransCanada Pipelines, the National Energy Board and the Government of Canada are defendants. The hearing will be held in the Ontario Superior Court in Toronto.
A motion for “summary judgment” is to be argued by their lawyers, asking the court to order that for older pipelines that were approved and built before the duty to consult/accommodate applied, any new activity on those pipelines that causes physical impacts, has to trigger the duty to apply to that new activity today.
“That means that intrusive work like ‘integrity digs’ where they dig up part of the pipeline to repair or replace it, should no longer happen without the Crown and the company first engaging with and protecting impacts against the First Nations who live and are from there”, says Aroland Chief Dorothy Towedo.
“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,” says the First Nations’ lawyer Kate Kempton of OKT Law. “Old projects that were built before this Duty became part of Canada’s constitutional obligation to First Nations,” Kempton explains, “escape having this Duty apply, even for new activity on these projects that hurt First Nations and adds to cumulative impacts on them. 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.”
“We are very hopeful that Canadian law will go in the direction it needs to, so that our identities and rights are not steamrolled over by all this pipeline work, as they have been,” says Ginoogaming Chief Celia Echum.