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In Aroland First Nation v Transcanada Pipelines Limited, the Ontario Superior Court of Justice declined to decide on a motion whether the duty to consult applies to routine maintenance activities, specifically integrity digs and hydrostatic testing, for pipelines approved before the courts articulated the duty to consult. 1

The issue was brought before the Court on a motion for partial summary judgement. The Court held that the issue could not be "fairly and justly decided" on such a motion. 2 Instead, the issue will be dealt with in the main action.

This action raises interesting legal issues with practical significance for proponents and Indigenous communities. The ultimate decision will fill in details about how and when to apply the duty to consult. Background

TransCanada operates four natural gas pipelines (located largely underground) within the traditional territories of Aroland First Nation ("AFN") and Ginoogaming First Nation ("GFN"). 3

AFN and GFN exercise Treaty and Aboriginal rights within their traditional territories. 4

Under the National Energy Board Act , the National Energy Board ("NEB") has jurisdiction to approve construction of interprovincial pipelines by issuing Certificates of Public Convenience and Necessity ("Certificates"). 5 Certificates continue in perpetuity. 6

The pipelines at issue in this case were approved prior to judicial recognition of the duty to consult. 7 Consequently, AFN and GFN were not consulted prior to the issuance of the Certificates for the pipelines. 8

Certificates authorize the certificate holder to do all "acts necessary for the construction, maintenance, and operation of its line." 9

As part of its routine maintenance operations, TransCanada conducts regular testing procedures on pre-approved pipelines, including: integrity digs, which involve excavating 8 to 18 meters in length along a pipeline and take approximately 23 days to complete, and

hydrostatic testing, which involves drawing large amounts of water from local water bodies into a pipeline and takes approximately 55 days to complete. Hydrostatic testing involves some ground disturbance. 10

There have been approximately 247 integrity digs and 47 hydrostatic tests within the AFN and GFN’s traditional territory since the pipelines were constructed. 11

The court observed that "[o]bviously, these tests are very invasive as they require extensive disruption of land" but equally "pipeline safety is an important concern that motivates these tests." 12

In 2017, AFN and GFN issued an action challenging TransCanada’s ability to conduct integrity digs around its pipelines without consulting AFN and GFN, and sought various forms of declaratory relief and damages. 13

AFN and GFN subsequently brought a motion for partial summary judgment seeking one of the declarations requested in its statement of claim – a declaration that the duty to consult applies to pipeline maintenance testing conducted within their traditional territories. 14 Crown Conduct

The Crown owes a duty to consult when the Crow

> has knowledge, actual or constructive, of a potential Aboriginal claim or right, and contemplates conduct that could adversely affect that claim or right. 15 TransCanada argued that the Crown conduct at issue in this case was the issuance of the Certificates, which occurred from the 1950s to 1998. 16 Pipeline maintenance is "all part of the same disturbance" that was caused by the historical approval of the pipelines. 17 Courts have held that the duty to consult applies only to immediate or prospective Crown conduct, not historical Crown conduct. 18 Therefore, the duty would not apply to pipeline maintenance in this case.In contrast, AFN and GFN submitted that Crown conduct was permitting, by acquiescence, certain routine pipeline maintenance activities that are "highly invasive" and cause "extensive disturbance." 19 Each invasive test constitutes a new disturbance to the […]

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