The action was brought by the WFN following efforts to engage
the company, Solid Gold Resources Corp., shortly after the WFN
first discovered the drilling activity on Treaty 9 lands in the
Spring of 2011. By that time the company had staked its claim
(between November 2007 through 2010); raised money through
flow-through shares; and it began drilling in March 2011. While the
company was advised by the Crown, first in 2009 to contact the
First Nation to consult regarding its intended mineral exploration
and then on November 8, 2011, the company did not consult.
Upon finding that the company had a duty to consult WFN prior to
commencing its exploratory drilling, Madame Justice Brown J. held
at para. 58 that the company willfully disregarded its duty (not
even meeting the industry standard for responsible exploration) by
choosing not to consult until after its flow-through share monies
for 2011 had been exhausted. Their failure created a significant
possibility of harm to WFN's Aboriginal and Treaty rights which
could not be compensated by damages: (at para. 60)
" I am satisfied based on all of the evidence that, without
meaningful consultation and accommodation regarding the exploratory
mining operations of Solid Gold, involving bona fide dialogue and
information sharing between WFN and Solid Gold, facilitated by the
presence of the Crown, there is a significant possibility of harm
to WFN's Aboriginal and Treaty rights. There has to date been
no demonstrated respect for those recognized rights."
Despite the company's argument that it would suffer economic
harms and the Crown's submission that an injunction would cause
greater tension, Justice Brown J. found the balance of convenience
in favour of WFN on the basis that it was in the public's
interest to grant the injunction in the circumstances of this case
(where the rights to consultation and accommodation are ignored) to
ensure constitutionally protected Aboriginal and treaty rights are
honoured and respected (at paras. 70 to 72):
" I have taken into account the cases cited by both WFN and
Solid Gold, including Lax Kw'alaams and
I am mindful of the importance of reconciliation and the
derivative concepts of consultation and accommodation as they have
developed in Canadian jurisprudence. I am further mindful of the
Crown's position that an injunction would not foster relations,
but would exacerbate tensions. While a facilitation of the duty to
consult is preferable, it is not always possible.
I am also mindful of WFN's position that to refuse to enjoin
Solid Gold from its drilling, in the circumstances of this case,
will send a message that Aboriginal and treaty rights, including
the rights to consultation and accommodation can be ignored by
exploration companies, rendering the First Nations
constitutionally–recognized rights meaningless. This
would not be in the public interest. It is in the public interest
to ensure that the Constitution is honoured and
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Canada is a constitutional monarchy, a parliamentary democracy and a federation comprised of ten provinces and three territories. Canada's judiciary is independent of the legislative and executive branches of Government.
The Government of Alberta recently announced a number of policy changes that will impact the Alberta Electricity Market, composed of its generators, transmitters, distributors, retailers, electricity consumers and wholesale electricity market.
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