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Tom FlanaganIn 2004, the Supreme Court of Canada created the “duty to consult.” The setting was British Columbia, where aboriginal title had never been ceded by treaty. The ruling made sense in that context; it seems only fair to consult a First Nation about exploitation of land and resources to which it may have a plausible claim of ownership.

Shortly thereafter, the court extended the duty to consult to Treaty 8 territory in Alberta. Aboriginal title had been ceded in 1900, but Treaty 8 allowed the signatory Nations to continue hunting and gathering on public land until the Crown desired the land for other purposes. Now the court ruled that the Crown had a duty to consult before doing anything that might affect those hunting rights because, as treaty rights, they had been constitutionalized by the Constitution Act, 1982.

The duty to consult quickly spread across Canada because many other treaties contain wording similar to Treaty 8. Although aboriginal title had been ceded decades ago, First Nations now claimed a right to be consulted about any land or resource development in their “traditional territories,” although that phrase has no constitutional or legislative definition. Coupled with environmental activism, the duty to consult has blocked the Northern Gateway pipeline in B.C., thrown the Ring of Fire mining development in northern Ontario and the Energy East pipeline into doubt, and substantially increased transaction costs for all resource projects even if they do finally succeed.

Now that extension across space is complete, we are faced with extension backward in time. The Aroland and Ginoogaming First Nations, located north of Thunder Bay, are challenging routine maintenance work on the Canadian Mainline, which carries natural gas from western to eastern Canada. Authorized by cabinet in 1956, this pipeline (actually a family of lines) has been in operation for almost 60 years. Like all pipelines, it requires maintenance to prevent leaks and explosions; so the owner, TransCanada Corporation, performs “integrity digs” to check on the pipeline’s status. Such digs are performed with the permission and under the procedures of the National Energy Board (NEB).

Enter the duty to consult. The Aroland and Ginoogaming First Nations maintain that NEB procedures did not give them sufficient opportunity to be consulted about this maintenance work. At first they sought an injunction to block the work, but they gave up that plan after realizing it would be hard to prove the irreparable harm required to get an injunction, and they would be liable for costs if they lost.

TransCanada will now proceed with the dig, but the litigation will also continue. The First Nations are going to the Ontario Superior Court of Justice to challenge the constitutionality of the National Energy Board Act and of NEB regulations. The challenge is not merely prospective; the plaintiffs are asking for $20 million damages related to “unjustified infringements” of aboriginal or treaty rights caused by the “construction, installation and operation of the Mainline,” and another $20 million for “past breaches of the duty to consult and accommodate the Plaintiffs.”

The wording shows a desire to go all the way back to 1956, even though the duty to consult stems only from Supreme Court decisions of 2004 and 2005, which in turn were based on Section 35 of the Constitution Act, 1982.

A favourable retroactive verdict, if ultimately endorsed by the Supreme Court, might make Canada liable to retroactive damage claims from First Nations for having built the infrastructure upon which modern civilization depends – roads, railways, pipelines, power lines, mines and oil wells. A favourable prospective verdict would be less consequential, but still important because it might require increased consultation and thereby increase transaction costs for routine maintenance on projects completed long ago.

Even if this case sputters out in the course of litigation, it illustrates how seemingly innocuous terms, such as the “duty to consult,” can be weaponized by political activists.

Tom Flanagan is a senior fellow of the Fraser Institute and professor emeritus of political science at the University of Calgary.

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