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February 05, 2019

Case to Watch: Does the Duty to Consult Apply to Maintenance of Existing Pipelines?

In Aroland First Nation v Transcanada Pipelines Limited, the Ontario Superior Court of Justice declined to decide on a motion whether the duty to consult applies to routine maintenance activities, specifically integrity digs and hydrostatic testing, for pipelines approved before the courts articulated the duty to consult.

The issue was brought before the Court on a motion for partial summary judgement.  The Court held that the issue could not be “fairly and justly decided” on such a motion.  Instead, the issue will be dealt with in the main action. 

This action raises interesting legal issues with practical significance for proponents and Indigenous communities.  The ultimate decision will fill in details about how and when to apply the duty to consult.

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