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.

www.fasken.com

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions