Q and A

First Nations want National Energy Board regime ruled unconstitutional

A lawsuit launched by two First Nations in northern Ontario this month seeks millions of dollars in damages and a ruling that the National Energy Board's regulatory regime is unconstitutional.

Lakehead law professor Jason Maclean explains the legal issues in pipeline lawsuit launched this month

Jason MacLean is an assistant professor of law at Lakehead University. (Supplied)

A lawsuit launched by two First Nations in northern Ontario this month seeks millions of dollars in damages and a ruling that the National Energy Board's regulatory regime is unconstitutional. 

Aroland and Ginoogaming First Nations argue their treaty rights were violated by the National Energy Board, Canada and TransCanada PipeLines during the construction of the natural gas pipeline near Geraldton, Ont., and by the on-going operation and maintenance of the pipeline.

The suit, launched last week, alleges the three parties failed in their duty to consult the First Nations about the activity on their traditional lands.

CBC News asked Jason MacLean, an associate professor in the faculty of law at Lakehead University who specializes in environmental and constitutional law and corporate social responsibility for an analysis of the case.

CBC News: What do you make of the argument by Aroland and Ginoogaming First Nations in this case that the National Energy Board regime should be deemed unconstitutional?

Jason MacLean: In many ways it raises a number of issues that are presently being decided by the Supreme Court of Canada in a case called Clyde River.

The Supreme Court of Canada heard that appeal back in December and is considering a very similar issue about whether or not the government can discharge its duty of consultation and accommodation toward Indigenous peoples through the National Energy Board.

And a number of concerns have been raised about the competence of the National Energy Board and its ability, both at law and just also on the ground, to actually fulfil that duty.

So it's really an interesting case because the law is a bit up in the air on this and a bit uncertain.

CBC: This case talks about an historical alleged infringement when the pipeline was first built in the 1950s and an on-going potential infringement with ongoing maintenance work on the pipeline. What do you think of this argument that there's an obligation that goes back to before the time when Aboriginal rights were recognized in the constitution?

JM: It's going to be a very difficult argument, legally because it poses questions about what the parties, what the government and also industry proponents thought and reasonably expected were their legal duties at particular points in times. So that argument is going to be difficult to make in terms of violations of a duty that reasonably in the minds of government and industry proponents might not have actually existed.

But in terms of ongoing harm, that's a much stronger argument and I think there's a lot of merit to the arguments in this case and a lot of merit, for that matter, to the arguments advanced before the Supreme Court of Canada by the Hamlet of Clyde River.

The duty to consult and accommodate under Section 35 of the constitution goes to the very heart of the honour of the Crown and the over-arching policy goal of reconciliation with Indigenous peoples. In order to fulfil that, the government has to go far beyond the procedural duty to consult, it has to get to the heart and the core of the substance of the concerns raised by Indigenous people with respect to their modern treaty rights. 

I think the Indigenous peoples in this case as well as in Clyde River have a very strong argument that the Crown is not doing enough in terms of its duty of deep consultation.

CBC: The counter argument that TransCanada is offering is that this is operation and maintenance on existing infrastructure that is required to be done. How do you see that playing out in this case?

JM: It may well be that, from TransCanada's point of view that it has procedural obligations to look at maintenance issues, to look at safety issues. But the legal question is whether or not those undertakings, or that conduct by TransCanada impinges or infringes upon Indigenous peoples treaty rights.

The nature of the activity itself is immaterial. It's a question of whether or not rights are being infringed, and if rights are being infringed and even if rights are potentially being infringed, that triggers the federal government's duty of consultation under the constitution.

This transcript has been edited for length and clarity.