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 rights."
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 Crown.
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 public interest.
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