Northern Ontario First Nations take TransCanada to court over pipeline work

Two First Nations are questioning TransCanada's motives as it plans work on its pipeline near Geraldton, Ont.

Ginoogaming and Aroland First Nations have filed a motion for an injunction against TransCanada PipeLines, Canada and the National Energy Board, after receiving notice the company plans to conduct so-called "integrity digs" on land within the First Nations' traditional territory.

The work will use heavy equipment to expose the buried natural gas pipeline in a 30 kilometre stretch, according to Raymond Ferris, who works with Aroland First Nation on land and resource issues.

"We feel that the [integrity digs] are being disguised as regular operations and maintenance but we believe this is part of an overall bigger project called Energy East," said Raymond Ferris.

Energy East is the proposed project that would convert TransCanada's natural gas pipeline to an oil pipeline, carrying Alberta oil to New Brunswick.

"This integrity work is for the ongoing maintenance and operation of our Canadian natural gas system and has nothing to do with our proposed Energy East Pipeline Project," said a spokesperson for TransCanada.

The company said two digs are planned for direct inspection, and another two digs are planned to run a pressure test on the pipeline. They were scheduled for January but have been delayed because of the injunction motion.

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The heart of the court action is a civil suit seeking $40 million in damages and an additional $20 million in damages if the integrity digs go ahead.

The First Nations allege that their treaty rights were violated both during historical work on the pipeline and the plans for the present day activity on their traditional territories. In court documents, the First Nations say they were not consulted about the work that could impact on their ability to hunt, fish, trap and gather plants and medicines on the land.

"Before anything happens on the land consultation and accommodation protocols must be given the utmost respect from the government and the industry," Ferris said.

Duty to consult

Initial construction of the pipeline was completed in 1958, before Aboriginal rights were widely recognized. The First Nations' court action argues that those rights should be respected now, even for maintenance of existing infrastructure.

"The NEB (National Energy Board) has to grow up to meet the requirements of Aboriginal and treaty rights," said Kate Kempton, the lawyer for Ginoogaming and Aroland. "If we don't actually honour these rights then they are rendered meaningless."

A spokesperson for the NEB said the agency cannot comment directly on a matter that is currently before the court.

But, Darin Barter said intergritydigs are an important aspect of pipeline safety oversight and that the NEB requires companies to provide "Indigenous groups" with an opportunity to express concerns before work is undertaken.

TransCanada told CBC News that it sought input from Ginoogaming and Aroland "numerous times" over the past two years,

"There is no duty to consult regarding operations and maintenance activities in the way there is for the construction of new projects," spokesperson Shawn Howard said in an email.

The injunction motion is scheduled to be heard on January 25 at the Ontario Superior Court in Toronto.