Aroland First Nation and Ginoogaming First Nation sought partial summary judgment for a declaration that the Crown's duty to consult under s. 35 of the Constitution Act, 1982, is triggered by ongoing invasive testing (integrity digs and hydrostatic testing) on established natural gas pipelines traversing their traditional territories.
The defendants opposed, arguing no duty to consult or that the matter was unsuitable for partial summary judgment.
The court dismissed the motion, concluding that the issue could not be fairly and justly decided through partial summary judgment due to the need for a careful, incremental approach to Aboriginal law, disputed facts regarding adverse impact, significant overlap with broader issues of duty scope and breach, and the novelty of the case.
