Ontario Superior Court Grants Injunction Against Mining Company for Failing to Consult

Aboriginal Law Blog

January 06, 2012

On January 3, 2012, Ontario Superior Court Justice Carole Brown J. granted an injunction to the Wahgoshig First Nation (the "WFN") restraining a junior minor from engaging in all mining exploration activities for 120 days on Treaty 9 lands upon finding that the company failed to consult the WFN prior to conducting its exploratory drilling. See, Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario et al., 2011 ONSC 7708.

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 Platinex.

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 respected."