On August 28, 2014, in Wabauskang First Nation v. Minister of Northern Development and Mines1 (Wabauskang), the Ontario Divisional Court (Court) dismissed a judicial review application brought by Wabauskang First Nation (WFN) against the Ontario Ministry of Northern Development and Mines (Ministry) and Rubicon Minerals Corporation (Rubicon).2 WFN had challenged a decision (Decision) of the Ministry's Director of Mine Rehabilitation (Director) to acknowledge (and thus approve) Rubicon's Production Closure Plan (Closure Plan) for its Phoenix Gold Project located in northwestern Ontario (Project).
This decision provides an illuminating discussion and clarification of several principles of the Crown's duty to consult originally set out in the 2004 decision of the Supreme Court of Canada (SCC) in Haida Nation.3 In particular, it addresses the appropriate scope and substance of consultation in the context of Treaty 3 in Ontario and confirms the authority of the Crown to delegate procedural aspects of consultation to proponents. In this decision, the Court also accepts as reasonable the institutional procedures put in place by Ontario under the Mining Act4 to assess Aboriginal claims, potential impacts on such claims and the adequacy of consultation.
The Project is a proposed gold mine located on privately held land on an isolated peninsula within Treaty 3 lands, including the traditional territory of WFN. Much of the Project land is a brownfield site and has been under various stages of exploration and industrial activity since the 1950s. In 2002 Rubicon acquired an option on the Project site, which was already in advanced stages of mineral exploration.
In order for a proponent to proceed with advanced exploration or to commence mine production in Ontario, the Director must acknowledge receipt of a closure plan made in accordance with the Mining Act and its Regulation. Following consultations with WFN in 2009 and 2010 and negotiations for a benefits agreement, Rubicon filed an initial production closure plan with the Ministry in February 2011. Rubicon voluntarily withdrew its initial plan to allow for additional consultation with WFN and delayed refiling of the plan several times to allow time for a consultant for WFN to review the plan. In October 2011, Rubicon submitted to the Ministry the revised Closure Plan, which addressed the concerns raised by the WFN consultant and included all recommended mitigation measures.
WFN raised concerns with the filing of the revised Closure Plan and in particular questioned Ontario's jurisdiction to accept the Closure Plan on the basis of the trial court's decision in Keewatin v. Minister of Natural Resources,5 which was released in August 2011. In Keewatin, the trial judge held that on the basis of Treaty 3, absent prior authorization of the federal government, Ontario could not take up or authorize taking up of Treaty 3 lands if it would significantly interfere with Treaty 3 harvesting rights.
Despite WFN's concerns, the Director issued the Decision in December 2011. Relying upon the Director's acknowledgement of the Closure Plan, Rubicon proceeded with development of the Project. In December 2012, WFN applied for judicial review of the Decision, seeking for it to be quashed or suspended until the Crown's duty to consult and accommodate was met. WFN was granted further time to perfect its application pending the outcome of the decision of the Ontario Court of Appeal (ONCA) in Keewatin, which was released in March 2013.6
The Court considered two key issues raised by WFN. The first issue was whether Ontario had exclusive regulatory jurisdiction to make the Decision, or whether it would constitute an infringement of treaty rights, based on the terms of Treaty 3. On the basis of the trial decision in Keewatin, WFN argued that Ontario did not have authority to accept the Closure Plan without first determining whether it infringed WFN's Treaty 3 rights. If it did, WFN argued that Ontario would not have jurisdiction to make the Decision.
The Court held that this issue had been determined by the ONCA in Keewatin, which overturned the trial judge's decision and confirmed Ontario's decision-making authority on the basis of its provincial constitutional authority. The ONCA's decision in Keewatin was recently upheld by the SCC in Grassy Narrows.7 Please see our previous commentaries on the ONCA's decision in Keewatin and the SCC's decision in Grassy Narrows for further details about Ontario's jurisdiction in this regard.
The second issue raised by WFN was whether the Crown had breached its duty to consult and accommodate WFN. WFN alleged that the Crown had breached its duty in three ways:
- by failing to assess the nature of WFN's claims;
- by failing to share its initial assessment of WFN's claims with WFN; and
- through improper delegation of its duty to consult and accommodate to Rubicon.
The Court's conclusions with respect to each of these issues are discussed below, the primary issue being item (c): whether the Crown had improperly delegated too much of its duty to consult to Rubicon.
FINDINGS OF THE COURT
(a) Ontario's assessment of WFN's claims
It has been well established by the courts since Haida Nation that in order to meaningfully fulfill its duty to consult, the Crown must first assess the appropriate level of consultation required in respect of a potentially affected Aboriginal group. In order to do so, the Crown must make a preliminary assessment of the strength of an Aboriginal group's rights and interests and the potential impacts of its decision on such rights or interests.
In this case, the Court concluded on the evidence that Ontario had established a reasonable institutional process in which to assess the potential or actual impacts on WFN's claims, and it held that Ontario's assessment of WFN's claims and the potential impacts on such claims at the mine production stage was reasonable. Ontario had reasonably identified WFN's Treaty 3 rights (namely, harvesting and fishing rights) and considered all potential impacts upon such rights.8
(b) Sharing of Ontario's assessment of claims with WFN
WFN submitted that the Crown had breached its duty to consult by failing to share the results of its assessment of WFN's claims with WFN. The Court noted that the purpose of such an assessment is for Ontario to determine the appropriate level of consultation, and WFN had not provided any authority to support the argument that Ontario must share its assessment with WFN as part of the consultation process. The Court observed, however, that in Grassy Narrows, the SCC did make a comment to the effect that the Crown must communicate to the First Nation its findings regarding the impact of the project on the First Nation's rights. Despite this comment, the Court concluded that it ought not to review the reasonableness of Ontario's assessment made in 2011 on the basis of the SCC's comment in a 2014 decision.9
Although it was not applicable to this case, the SCC's comments in Grassy Narrows leave open the question of whether they suggest a potential expansion of the Crown's duties in the early stages of consultation. This could give rise to arguments in future cases based on an interpretation of Grassy Narrows with respect to an obligation of the Crown to share its preliminary strength of claim assessment with First Nations.
(c) Delegation of duty to consult and accommodate
WFN's key argument concerned the allegation that the Crown improperly delegated the duty to consult to Rubicon. Notably, WFN acknowledged that its concern was not with respect to the adequacy of consultation, and WFN did not provide any submissions regarding how Ontario had specifically failed to fulfill its duty to consult and accommodate the Treaty 3 rights of WFN to hunt and fish. Rather, WFN argued that Ontario had improperly delegated more than simply the procedural aspects of consultation to Rubicon and had relied too heavily on Rubicon to fulfill the Crown's duty to consult.
In dismissing WFN's arguments and upholding the Decision, the Court made the following observations:
(i) The Crown's duty to consult did not give rise to a requirement to consult in respect of shared decision making or revenue sharing.
WFN argued that it had a right to be consulted by Ontario with respect to project-related benefits and revenue sharing, as well as the possibility of shared decision making with respect to the Project. WFN argued that Ontario failed to consult in respect of these issues and had failed to negotiate resource sharing with WFN.10
The Court did not accept that Ontario had such a duty to consult and accommodate with respect to shared decision making or revenue sharing. The Court held that Treaty 3 makes no express or implied reference to shared decision making or revenue sharing. Further, WFN had understood and agreed that these issues were to be negotiated between Rubicon and WFN, which (while not required at law) had occurred.11
The Court further observed that, contrary to what was stated in WFN's Consultation and Accommodation Protocol regarding its expectation for shared decision making, as noted in Haida Nation, the duty to consult and accommodate does not require the Crown to have the consent of the First Nation before a project is approved, nor does it provide the First Nation with a veto over the project or the Crown's decision making.12
(ii) The Crown met its duty to consult with respect to impacts on WFN's harvesting and fishing rights.
The Court held that Ontario reasonably fulfilled its duty to consult and accommodate WFN in respect of its Treaty 3 harvesting and fishing rights, within the meaning of Haida Nation. The Court observed that the Ministry had been actively involved in ensuring that consultations occurred between Rubicon and WFN and affording every reasonable opportunity for consultation between Ontario and WFN. The Court noted that the Director had reviewed the adequacy of Rubicon's consultation, made appropriate recommendations to Rubicon with respect to consultation and was regularly in communication with representatives of both WFN and Rubicon with respect to the consultation process. Furthermore, the Court noted that Ontario had repeatedly offered to consult directly with WFN, but it was at WFN's insistence that WFN negotiated with Rubicon directly in accordance with WFN's own consultation and accommodation protocol.13
(iii) Ontario properly delegated only procedural aspects of the duty to consult and accommodate to Rubicon.
The Court held that Ontario appropriately delegated procedural aspects of consultation to Rubicon while still acknowledging that it had the ultimate responsibility to ensure that the duty to consult was fulfilled. This was evidenced in various ways, including through its recommendations to Rubicon to delay filing of the Closure Plan to provide further time for WFN to articulate its concerns and through its assessment of Rubicon's responses to WFN's consultant's report.14
The Court further held that Ontario had appropriately analyzed the need for accommodation within the context of a brownfield site and met its duty to accommodate by ensuring that Rubicon undertook in a meaningful way to mitigate WFN's concerns. The Court found it acceptable that Rubicon had responded to many of the concerns raised by WFN's consultant on a "best efforts" or "reasonable efforts" basis, and that such responses were not excessively vague. This approach was acceptable as many of the questions and concerns related to issues of the mine closure, which would only occur many years in the future. The Court found it reasonable for Ontario to accept Rubicon's ongoing commitments to monitor WFN's concerns and take appropriate accommodation and mitigation steps as appropriate.15
(iv) If warranted, any legal remedies would have been solely against the Crown.
Finally, the Court observed that even if it had found any improper delegation of the duty to consult, or even a failure to fulfill the duty to consult, the remedy would have been solely against Ontario, not Rubicon.16 Although the Court did not elaborate on this point, this finding is consistent with the principle that the legal responsibility of the duty to consult ultimately rests with the Crown rather than with third parties. Furthermore, the Court's earlier observations in the decision suggest an acknowledgement of the considerable efforts at consultation and accommodation made by Rubicon.
In its review of the facts, the Court observed that WFN had filed its judicial review application more than a year after the Decision was issued. The Court also referred to the substantial expenditures and work undertaken by Rubicon in reliance on the Closure Plan. The Court noted that there would be drastic implications for Rubicon and its workers if work on the Project were stopped, even temporarily.17 In our view, this observation reflects a number of common themes that the SCC and lower courts have raised in relation to the duty to consult, including the importance of timeliness in decision making and the procedural fairness owed to proponents to receive a decision within a reasonable period of time, and the need to balance the rights and interest of both Aboriginal and non-Aboriginal peoples.18
1. 2014 ONSC 4424 (Wabauskang).
2. Partner Geoff R. Hall of McCarthy Tétrault LLP acted as co-counsel for Rubicon in this litigation, with Thomas Isaac of Osler, Hoskin & Harcourt LLP.
3. Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73 (Haida Nation).
4. R.S.O. 1990, c. M.14.
5. 2011 ONSC 4801.
6. Keewatin v. Ontario (Natural Resources), 2013 ONCA 158.
7. Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48 (Grassy Narrows).
8. Wabauskang at paras. 200–204.
9. Wabauskang at paras. 205–207.
10. Wabauskang at paras. 212, 216.
11. Wabauskang at para. 217.
12. Wabauskang at para. 235.
13.Wabauskang at paras. 218–234.
14. Wabauskang at para. 229.
15. Wabauskang at para. 234.
16. Wabauskang at para. 243.
17. Wabauskang at paras. 175–177.
18. See, for example, the SCC's comments in Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, at paras. 10, 35, 79 and 80.
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