An maddening but interesting read on how the duty to consult is being weaponized to include even maintenance on old projects.  Two Matawa tribes challenge mainteance on the Canadian Mainline natural gas pipeline.  They want to be 'consulted' on simple pipeline maintenence.  Also would like a paltry 40 mil for 'damages'.  Possibly looking to profit where they cannot due to their location in the ring?

Hard to copy/paste so read at........

http://www.troymedia.com/2017/03/05/how-political-activists-have-weaponized-duty-to-consult/

How political activists
have weaponized “duty to
consult”
By Fraser Institute
First Nations in Ontario are challenging routine
maintenance work on a pipeline which carries
natural gas from western to eastern Canada

CALGARY, Alta. March 5, 2017/ Troy
Media/ – In 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.
Tom is a Troy Media contributor. Why aren’t you?