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Ontario first nation heads to Supreme Court over Enbridge’s Line 9

A sign warning of a high pressure petroleum pipeline is seen on the Line 9 Enbridge oil pipeline as it is worked on in East Don Parkland in Toronto on March 6, 2014.


An Ontario first nation is taking its fight against a controversial pipeline that runs through one of Canada's most populous corridors to the country's top court.

The legal battle over Line 9 – which runs between Sarnia, Ont., and Montreal – pits the Chippewas of the Thames First Nation against Enbridge Inc., the National Energy Board and the Attorney General of Canada.

The aging pipeline drew spirited opposition when Enbridge sought to reverse its flow and increase its capacity in 2012.

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The company has since won the National Energy Board's approval, cleared regulatory obligations and has begun operating the pipeline in its new configuration.

At the heart of its legal case is a question over the duty of the Crown to consult and accommodate first nations on concerns related to the potential effects of the pipeline on their aboriginal and treaty rights.

The first nation argues it wasn't consulted properly over the pipeline that runs through its traditional territory.

"The case has huge implications for firsts nations across the country," said Chief Leslee White-Eye. "The corporations running the pipeline shouldn't be the ones fulfilling the constitutional obligations."

After the National Energy Board approved Enbridge's application, the first nation appealed the board's decision at the Federal Court of Appeal but it was dismissed in October.

The Chippewas of the Thames is now asking the Supreme Court of Canada for leave to appeal that decision.

"What we have is a previous government that refused to come to the table and honour the obligations of the Crown through the Constitution," said White-Eye. "They didn't participate in a process that was faulty and that we had indicated was faulty and was with the wrong parties – it should have been between the nation and the Crown."

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Line 9 has operated since 1976, first pumping oil eastward. Its flow was reversed in the late 90s, in response to market conditions, to pump imported crude westward.

It now supplies Alberta crude to Suncor Energy's Montreal refinery.

Enbridge said it would not comment publicly on the leave to appeal application but said Line 9 had been operating safety for more than 40 years.

"The line has recently undergone a series of major upgrades, including new valves, maintenance work and facility enhancements that made a safe line even safer," said spokesman Graham White, who called the three-year consultation on Line 9's reversal "the most extensive in the company's history" for the reversal of an existing line.

White added that Enbridge had also conducted tests on key segments of the line to ensure it was fit for service and made "considerable enhancements" to its emergency response capabilities.

The National Energy board and the officer of the Attorney General both declined to comment on the case as it was before the courts.

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The Chippewas of the Thames say they have support from regional, provincial and national assemblies of first nations in their legal battle and note that it is about more than just federal obligations.

"The basis of all of this is the land, the environment, the requirement of us to be always acting for the betterment of future generations," White-Eye said.

"Had we been consulted prior to Enbridge's application being reviewed, there could have been things that we could have brought to bear in terms of protective measures to ensure that if there were a spill there was going to be more measures put in place."

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