Most Canadians who follow current events will have seen headlines in recent weeks and months about the approval of new pipelines in Canada and the United States. Much less attention is paid to dealing with the pipelines that are already in the ground.
Over 50 years ago, TransCanada PipeLines Limited built what we now know as the “Canada Mainline”, a natural gas pipeline that services most of central and eastern Canada. At the time, there was no environmental assessment legislation requiring detailed considerations of the environmental impacts of such a massive construction project, like there is today. At the time, Courts had not ruled on the Duty to Consult and Accommodate, nor on s.35 of the Constitution, which ‘recognizes and affirms’ Aboriginal and treaty rights, had not yet been enacted. The Pipeline, which travels right through the sacred traditional territories of the Aroland First Nation and Ginoogaming First Nation, was built without their consent, and without having consulted them.
Recently, both Aroland and Ginoogaming were informed that TransCanada wanted to do what it calls “integrity digs” – essentially digging up some of the buried parts of the pipeline to test its ability to withstand pressure. In the process, they would excavate long, shallow-sloped trenches.
According to resource users and traditional knowledge holders, this work will have serious impacts on the ability of Aroland and Ginoogaming members to exercise their Aboriginal rights. The presence of workers will scare off wildlife and make hunting unsafe, their digging may disturb hidden burial grounds and other sacred cultural sites, and the company has not prepared a site-specific environmental protection plan. On top of all of that, neither First Nation has been properly consulted or accommodated, as the Courts have long required.
On January 25th, OKT lawyers will be at the Ontario Superior Court of Justice seeking an emergency injunction prohibiting TransCanada from doing any work in the traditional territories of the Aroland and Ginoogaming First Nations unless and until the Duty to Consult and Accommodate is meaningfully and properly discharged.
This case is an important test of how Canadian institutions will give effect to the goal of reconciliation and recognize the principles set out in the United Nations Declaration on the Rights of Indigenous Peoples requiring the ‘free, prior and informed consent of Indigenous peoples prior to doing work on their land.
You can find Aroland and Ginoogaming’s Media Release here: 2017-01-09 MEDIA RELEASE – First Nations Lawsuit and Injunction Against TransCanada