Lawyer for 2 Ontario First Nations says recent pipeline ruling 'neither a win nor a loss'

An Ontario Superior Court judge has dismissed a motion by two northwestern Ontario First Nations seeking a ruling over consultation on pipeline work in their territories, with one of the lawyers representing the communities saying it's "neither a win nor a loss."

Aroland and Ginoogaming First Nations were seeking a judicial precedent that they be consulted when TransCanada Corporation does maintenance work, or "integrity digs" on its old infrastructure built on the communities' territory. The court action names the company, the National Energy Board and the federal government as defendants.

The communities are northeast of Thunder Bay, Ont., in the Greenstone area. The motion was part of a larger multimillion dollar lawsuit filed in 2017.

• Northern Ontario First Nations take TransCanada to court over pipeline work

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In her decision, released July 30, Justice Wendy Matheson said the issues raised "cannot be fairly and justly decided" by the summary judgement process. That means the communities and their lawyers will now have to decide if and how they want to move forward, said Kate Kempton, a partner with OKT Law in Toronto and senior legal counsel for the First Nations.

"There are different ways to break up a big case like this into segments and so we have to think about that, get instructions from our clients and seek direction from the judge on what to do next," she said.

'Very, very pleased'

The court challenges put forth by the First Nations' centre on the processes used to do maintenance on pipelines buried on their territories. Those lines were built decades ago, before the duty to consult with First Nations was enshrined in Canadian law.

The communities are arguing those rights should be respected now, including for maintenance of existing infrastructure.

The work involves digging down to expose sections of pipeline for inspection and, if needed, replacement. While Matheson didn't rule on the issue itself, she noted in her decision that the tests are "very invasive." That kind of language, Kempton said, means the communities are "very very pleased" with the decision.

TransCanada has said that the maintenance work, including the integrity digs, ensures that natural gas is transported safely. As for the duty to consult, the company said that the issue is "primarily a discussion between the Crown and the First Nations."

In her decision, Matheson said the communities "are not advocating for an unsafe pipeline," rather "meaningful input" on the process.

TransCanada has said it has sought input from the communities "numerous times."

That overarching issue is still far from resolved, Kempton said. "We're far from done, this is not over."