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