2 Ontario First Nations suing TransCanada over pipeline consultation process

TransCanada's Keystone pipeline facilities are seen in Hardisty, Alta., on Friday, Nov. 6, 2015. (Jeff McIntosh / THE CANADIAN PRESS)

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.