The Ontario Superior Court of Justice allowed an injunction application by Enbridge Pipelines Inc. to prohibit the Aboriginal defendants from interfering with its maintenance work on two pipelines in the Hamilton, Ontario area. The Court rejected the defendants' argument that it must consider whether the duty to consult and accommodate had been fully discharged before granting an injunction to a private party.

Enbridge owns and operates an interprovincial pipeline system extending across Canada and the USA. Line 10 is a 143-km long stretch of pipeline running between North Westover, Ontario to Buffalo, New York. Line 11 runs between Westover, Ontario and Nanticoke, Ontario. The easements for these pipelines had been granted to Enbridge's predecessor.

Enbridge has a comprehensive pipeline preventative maintenance program for its pipeline network. Under this program, it is sometimes necessary for an excavation around the pipeline segment, known as a "Maintenance Dig". Such work usually lasts 15 days. The Court referred to evidence that Enbridge had written to the Six Nations of the Grand River and the Mississaugas of the New Credit, as well as the Haudenosaunee Development Institute ("HDI"), well in advance of the maintenance. No objections were raised by the HDI or the two First Nations.

The defendants Williams and Hill identify themselves as representatives and "enforcers" of HDI. Enbridge asserted that the defendants Williams and Hill have regularly interfered with its work crews at a Maintenance Dig since January 2017. They have torn down snow fences, blocked roads and gates, and verbally demanded that the work be shut down. The defendants allegedly placed rabbit traps to obstruct access, asserting treaty hunting rights. In regards to these events, the Court allowed Enbridge's daily inspection reports to be admitted into evidence under the "business records" exception to hearsay.

In response to this injunction application, the defendants relied upon affidavits in which they assert the ability to exercise rights upon Haudenosaunee traditional treaty territory, and that such rights were recognized by the Nanfan Treaty of 1701. The defendants delivered a Notice of Constitutional Question on the issues of whether the provincial Trespass to Property Act applies to a Haudenosaunee person exercising rights guaranteed by the Nanfan Treaty and section 35. They also questioned whether an injunction could interfere with treaty rights, or whether an easement could be granted, where the provincial and federal Crowns have not upheld the Honour of the Crown.

The defendants further relied upon the decision of the Ontario Court of Appeal in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534 for the proposition that different questions arise in an injunction application if treaty rights are involved. They argued that the Court must consider whether the duty to consult and accommodate has been fully discharged. The Court rejected such arguments. Broad J. noted that a similar argument had been rejected by the Newfoundland and Labrador Court of Appeal in Nalcor Energy v. NunatuKavut Community Council Inc., 2014 NLCA 46 [summarized in our e-Newsletter of 19 December 2014], and was inconsistent with the Supreme Court of Canada decision in Behn v. Moulton Contracting Ltd., 2013 SCC 26. The courts do not condone self-help remedies. The principles applicable to the granting of an injunction are no different just because Aboriginal claims for consultation may be involved. Broad J. further noted that Enbridge is not the Crown, nor an agent of the Crown. He held:

… Accordingly, the question of whether the Crown has made efforts to comply with its duty to consult and accommodate is not relevant to the exercise of the court's decision to deny an injunction sought by a private party such as Enbridge with an interest in land on discretionary grounds.

The defendants have been unable to point to any cases where a precondition involving the exhaustion of efforts to consult and find negotiated or legislated resolutions has been recognized or applied where an injunction is sought at the instance of a private property owner where aboriginal treaty rights are claimed or exercised. …

In my view to impose a duty to consult on the Crown, as a precondition to any consideration of the test for the granting of an interlocutory injunction in the circumstances of this case would, in the words of the Supreme Court of Canada in Behn, be tantamount to condoning self-help remedies and would bring the administration of justice into disrepute.

The Court applied the test for an interlocutory injunction as stated in RJR-MacDonald Inc. v. Canada (1994). Since the application would in effect amount to a final determination of the dispute, it was necessary for Enbridge to show a "strong prima facie case" as opposed to merely establishing a serious question to be tried. The Court held that Enbridge satisfied this criterion. The interference of the defendants constitutes trespass and a violation of Enbridge's property rights. Enbridge also established that it would suffer irreparable harm if the injunction is not granted, and that the balance of convenience favours the granting of an injunction. In cases involving trespass or interference with property rights, injunctive relief is strongly favoured. In addition to the harm that may be caused to Enbridge's own interests, there is a public interest in allowing maintenance to the pipelines. The Court also noted that no new infrastructure is being constructed, but only the maintenance of existing pipelines. The Court was not satisfied that the Nanfan Treaty, as asserted by the defendants, reserves or extends hunting rights to private property. In considering the balance of convenience, the Court also held that unlawful self-help remedies should not be condoned.

The Court therefore held that Enbridge was entitled to an interlocutory injunction restraining the defendants from entering or occupying the sites of the Maintenance Dig, or interfering with Enbridge's access to the sites, and preventing Enbridge's ingress to or egress from the sites. The parties were given leave to make submissions on costs.