2 northern Ontario First Nations in court over pipeline work in their territories

Two northwestern Ontario First Nations are in court in Toronto today, challenging a pipeline company's ability to dig on their traditional territories without consultation.

Aroland and Ginoogaming First Nations, located northeast of Thunder Bay, Ont., in the Greenstone area, are seeking a judicial precedent that they be consulted when TransCanada Pipelines does maintenance work, or "integrity digs" on its old infrastructure built on the communities' territory. The First Nations court action names the company, the National Energy Board and the federal government as defendants.

We're saying that has to stop-Kate Kempton, lawyer

The pipelines in the Greenstone area were constructed decades ago, prior to the enshrinement of duty to consult in Canadian law. TheFirst Nations are arguing that those rights should be respected now, including for maintenance of existing infrastructure.

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

"If the approval (for a new project) is issued, there should be a number of conditions in that approval that stipulate how First Nations and their rights and their lands and cultures would be protected," said Kate Kempton, a partner with OKT Law in Toronto and senior legal counsel for the First Nations.

"[Older pipelines] were approved before that duty was articulated in Canadian law, understandably, they got built without consulting and accommodating," she continued. "But they continue to be operated, including through these discreet integrity dig activities, without the duty to be consulted and accommodated having been met either."

"We're saying that has to stop."

In a statement, a spokesperson for TransCanada said the maintenance work, including integrity digs, is to ensure that natural gas is transported safely. On the issue of consultation, the company said that the duty to consult is "before the courts and is primarily a discussion between the Crown and the First Nations."

"We will await the outcome of the case," the company said.

The National Energy Board said in a statement that it does not comment on cases before the courts. The Ministry of Crown-Indigenous Relations and Northern Affairs did not respond to a request for comment by CBC News on Tuesday.

Hearings part of larger civil suit

Hundreds of digs have taken place in Aroland's and Ginoogaming's territories over the years since the pipelines were built, Kempton said.

"So this is an ongoing issue," she said.

This court challenge is part of a larger lawsuit that seeks tens of millions of dollars over claims that the construction and maintenance of the pipelines violated treaty rights and lack of consultation on work that could impact the First Nations' ability to hunt, fish and gather plants and medicines.

"[Whether] we succeed on this motion, we might or might not continue with the rest of the underlying lawsuit," Kempton said. "This will have a profound effect on what we are and are not able to do with the rest of the lawsuit."

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

This week's hearings are scheduled to wrap up on Friday, Kempton said. The presiding judge will then render a decision, likely in several months, she added.

Ontario Regional Chief Isadore Day issued a statement Tuesday, urging supporters to attend the superior court hearings in Toronto.

"At stake here is the First Nation right to prevent any further activity on pipelines that were built on their lands without prior knowledge or consent," he was quoted as saying.