Canada: First Nation Blockade Where First Nation Refused To Consult Leads To Injunction

Last Updated: May 13 2008
Article by Neal J. Smitheman and Tracy Pratt

On February 12, 2008, Associate Chief Justice Cunningham of the Ontario Superior Court of Justice released his reasons for the September 27, 2007 injunction order in favour of Frontenac Ventures Corporation ("FVC") and against the Ardoch Algonquin First Nation (the "AAFN") and the Shabot Obaadjiwan First Nation ("Shabot"), its leaders and its members. The injunction motion arose from the occupation of private property, an area of which FVC leased for its field office and for core storage, and the access point to the exploration property upon which the FVC mining claims and lease are situated.

Ontario, the Ontario Provincial Police ("OPP") and the Algonquins of Ontario ("AOO") intervened in the motion. AOO is an umbrella group of Algonquin communities that are in negotiations with Ontario and Canada respecting an Algonquin land claim. At the time of the motion, the AAFN were not at the Algonquin land claim negotiation table but the Shabot was participating. Before the motion was argued, the defendant First Nations withdrew their affidavit materials and informed the Court that they would not participate in the motion.

FVC is a private exploration company that holds valid mining claims, a mining lease and agreements with private property owners to conduct uranium exploration in Frontenac County. The First Nations' blockade was instituted on June 28, 2007 and continued despite an interim order by Mr. Justice Thomson requiring the occupiers to vacate the property. At the time of the occupation, FVC was mobilising for its first exploratory drill program. The AOO argued that the Crown failed in its duty to consult and accommodate.

Associate Chief Justice Cunningham found that "the interference with property rights such as the current blockade and associated trespass in my view, by its very nature, gives rise to irreparable harm" and in so doing held that FVC would suffer irreparable harm unless injunctive relief was granted. The court further found that, without injunctive relief, FVC would be out of business. His Honour then engaged in a comprehensive analysis of the balance of convenience.

As in many disputes of this nature, the court needed to address the issue of the Crown's constitutional duty to consult. On the basis that there was some evidence of Aboriginal harvesting rights that could trigger the Crown's duty to consult, Ontario urged the court to defer its decision on the balance of convenience test pending the gathering of additional evidence. The AOO also supported a deferral until further consultation.

A.C.J. Cunningham decided that a deferral of the injunction decision was not appropriate in the circumstances, and indeed "would only encourage those who continue to break the law". At paragraph 20 of the Reasons, the court stated that:

While there is virtually nothing before me concerning aboriginal title, there is precious little evidence of potential adverse effects upon the traditional practices Ontario suggests I should find. There is virtually nothing on the record before me, and while in a perfect world Ontario's proposal might make some sense, the reality is that it would not work and would simply, in the words of counsel for the moving party, "reward bad behaviour".

The court made it clear that the continued illegal blockade [which the AOO did not support] was counterproductive to the broader Algonquin community's best interests. In this regard, His Honour stated that:

I fully recognize and support the notion of meaningful consultation with aboriginal interests. Like the AOO however, I do not support the notion of self-help and the breaking of our laws ... The AOO is to be commended for resolving its internal issues in a way that has enabled it to return to the negotiation table in a meaningful way, and it is only through such negotiations that many of the issues apparently outstanding will ultimately be resolved. They will not however be resolved by lawlessness and the taking of the law into one's own hands.

In recognition of the Haida principles that consultation does not constitute a "veto" entitlement for First Nations and that consultation requires good faith participation by the Crown and First Nations, His Honour noted that counsel for the AAFN earlier stated on the record that his clients had "drawn a line in the sand" that there would be no uranium mine. AAFN thus postulated that there was no reason for uranium exploration or consultation respecting such exploration. A.C.J. Cunningham found that any irreparable harm to the defendants was of their own doing: "I agree with counsel for the moving party that the defendants' refusal to consult in a meaningful way has essentially created a situation where they have become the authors of their own alleged irreparable harm. One is not entitled to take the law into one's own hands and then say irreparable harm will be suffered if one has to obey the law".

Although the AOO filed evidence, the court did not have the benefit of the defendant First Nations' evidence or submissions because of their withdrawal from the court process.

The exploration company proposed a schedule for staged exploratory activity on the property that incorporated the opportunity for identification of the defendants' Aboriginal values (trapping, archeologically significant sites, etc.) and possible accommodation of those values. The court endorsed this proposal as follows:

[W]ere it not for the proposal put forward by the moving party concerning a staged exploration program, I would have had little difficulty in granting the injunctive relief outright.

While maintaining its position that it is completely entitled to the injunction being sought, the moving party has in my view demonstrated a real sense of accommodation in putting forward what I consider to be a very worthwhile solution.

* * *

This proposal is a meaningful compromise which will give everyone concerned significant time for consultation to occur. There is no reason why all preliminary activity cannot occur at a parallel track, and I so order.

In my view, the solution I have adopted which is in effect the solution put forward by the moving party is the only sensible solution given the particular facts of this case.

The court found that the balance of convenience greatly favoured the company and ordered that the defendants immediately vacate the property. Broad injunctive relief in favour of FVC was granted.

The First Nations' actions taken outside of the court process were strongly criticized by A.C.J. Cunningham at paragraph 39 of the Reasons as follows:

I cannot imagine any situation where the illegal blockading of access to someone who has a legal right of entry would ever be justified. Indeed, if the defendants thought they had some legitimate reason by blockading access to this property, they could very easily have brought this matter to court by way of an injunction application. They have chosen not to do so, but rather have illegally occupied the land and set up a blockade. This cannot be permitted.

Unfortunately, some persons refused to comply with A.C.J. Cunningham's injunction order and continued the occupation and blockade. In a subsequent Order, fines were levied against AAFN and two of its leaders. The AAFN were fined and two of its leaders were fined and sentenced to terms of incarceration, subject to variation or discharge if they purge their contempt. The Judge emphasized the importance of the rule of law and the court's denunciation of deliberate breaches of court orders.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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