A recent Ontario Superior Court decision has reaffirmed that
neither the Crown nor mining companies may ignore their "duty
to consult" before beginning mineral exploration on Crown
lands that lie within the traditional territory of First Nations.
After weeks of procedural delays – during which drilling
continued – Wahgoshig First Nation (WFN) finally won an
injunction against Solid Gold Resources Corp. (Solid Gold) to halt
all mineral exploration activities on Crown lands south of its
reserve on the shores of Lake Abitibi. In its action, WFN said the
company's drilling could have an adverse effect on its treaty
and Aboriginal rights, disrupt hunting and trapping, and
permanently damage burial and other sacred sites. WFN sought to
enjoin Solid Gold from further exploration for its failure to
consult or accommodate.
In an Ontario Superior Court decision released January 3, 2012,
Justice Carole J. Brown granted a 120-day injunction and said that
the company and the Crown must now engage with WFN in a process of
meaningful consultation and accommodation about any further
exploration. She also ordered that if this process is not
productive, WFN can go back to court to seek an extension of the
injunction. Justice Brown concluded that
"I am satisfied based on all 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 significant
possibility of harm to WFN's Aboriginal and Treaty rights.
There has to date been no demonstrated respect for those recognized
Solid Gold's Legacy Project comprises 103 unpatented mining
claims covering some 21,790 hectares within WFN's traditional
territory south of Lake Abitibi, just a few kilometres west of the
Quebec-Ontario border. Drilling was occurring on lands deemed by
the Ministry of Natural Resources as an "area of cultural
heritage potential" and which WFN says encompass the core of
its cultural identity.
Although the Crown had advised Solid Gold to contact WFN
regarding its intended mineral exploration – and offered
to facilitate the process – no consultations were
undertaken before drilling began in the spring of 2011. Band
members discovered the exploration activities by accident and
applied for an injunction in November of 2011. Since that time
drilling activities increased and a second drill rig was brought
in. Drilling involves clearing a series of 25-square metre pads,
clearing forest, bulldozing access routes, and transporting/storing
fuels and equipment.
Solid Gold argued that granting injunctive relief would
essentially "shut down" its operations and jeopardize its
financial well-being. "The thrust of the First Nation's
action appears to be an effort to establish the power to deny
resource companies access to Crown land absent the First
Nation's consent," said company president Darryl Stretch.
The company argued that the Mining Act establishes a
"free entry" system whereby all Crown lands are open for
prospecting and staking, that it has no legal responsibility or
duty to consult and, that if there is such a duty, it resides in
The province said it had delegated the "operational
aspects" of the duty to consult to Solid Gold, which had not
fulfilled that duty. Ontario sought the Court's assistance in
fashioning "a consultation remedy that promotes reconciliation
by fairly balancing the right of WFN to be properly consulted and
the right of Solid Gold to carry out its mining activities."
It asked that exploration be permitted to continue while
negotiations between the parties proceed.
However, the Court disagreed. Failing to enjoin Solid Gold from
further drilling would "send a message that Aboriginal and
treaty rights, including the rights to consultation and
accommodation, can be ignored by exploration companies,"
Justice Brown wrote. Such a failure would render the First
Nations' constitutionally-recognized rights
"meaningless," she concluded, and would not be in the
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