Copyright 2008, Blake, Cassels & Graydon LLP
Originally published in Blakes Bulletin on Aboriginal Issues, July 2008
On July 7, 2008, the Ontario Court of Appeal released two decisions related to sentencing of aboriginal protestors for contempt for breaching injunctions aimed at preventing aboriginal protests. Although the issue before the Court of Appeal in these decisions was the appropriate sentence for contempt of court, the court made several important comments about the duty to negotiate in the context of aboriginal protests. Most significantly, the Court of Appeal referred to the jurisprudence of the Supreme Court of Canada regarding the duty to negotiate, and found that whenever the interests of First Nations collide with private interests, every effort should be made to reconcile the private and aboriginal interests through consultation, negotiation and accommodation in a genuine attempt to resolve the conflicting interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction or legal proceedings.
Facts
The Court of Appeal provided its reasons in the Frontenac decision, which involved an appeal by two members of the Ardoch Algonquin First Nation (AAFN) and the AAFN itself from sentences imposed for contempt of court. The contempt arose as a result of two injunctions granted to enable Frontenac to conduct a campaign of exploratory drilling for uranium on lands over which the AAFN had asserted a land claim. The land claim had been accepted for negotiation by the governments of Ontario and Canada and negotiations with respect to the land had been ongoing since 1991. In early 2007, the AAFN learned that Frontenac had staked mineral claims on the subject property under the Ontario Mining Act.
As a result, in June 2007, the AAFN and other non-aboriginal community groups started protest action opposing the exploration plans and blockaded Frontenac from gaining access to the disputed lands. One of the stated reasons for the protest was an apparent failure on the part of the government of Ontario to consult with the AAFN about Frontenac's exploration plans and the renewal of its mining lease. The appellants argued that until the government of Ontario discharged its constitutional duty to consult with AAFN, Frontenac was not legally entitled to conduct mineral exploration.
In July 2007, Frontenac commenced an action against the AAFN and its leaders seeking an interim injunction and C$77-million in compensation. The appellants did not participate in the injunction hearing and the injunction was granted on August 27, 2007. The appellants did not abide by the order and continued the blockade. Frontenac then brought a motion for an interlocutory injunction to prevent the AAFN from obstructing its activities on the property. Again the AAFN did not participate and the injunction was issued on September 27, 2007. The AAFN did not abide by the injunction and so Frontenac initiated civil contempt proceedings. With the encouragement of the motions judge, the parties agreed to enter into mediation for a 12-week period. However, the negotiations were unsuccessful and Frontenac revived its contempt motion. The appellants were ultimately declared to be in contempt of the court orders. The appellants Mr. Lovelace and Chief Sherman were each sentenced to six months in jail. Mr. Lovelace was fined C$25,000 and Chief Sherman was fined C$15,000. The AAFN was fined C$10,000. The judge also imposed a fine on each of the three appellants of C$2,000 per day for future non-compliance.
Reasons For Judgment
The sole issue before the Court of Appeal was whether the sentences imposed on the appellants were appropriate in the circumstances. However, the court did not simply focus on the appropriateness of the sentences in this case, but rather made several important comments about the background against which this case took place.
The court considered arguments that had been made before it about the importance of the rule of law in Canada. The court adopted comments it had previously made in Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, in particular finding that the rule of law had several dimensions, one of which was the reconciliation of aboriginal and non-aboriginal interests through negotiation. The court expressed the opinion that when a court is asked by a private party to grant an injunction which may have an adverse impact on an asserted aboriginal or treaty right protected by section 35 of the Constitution Act, "such cases demanded careful and sensitive balancing of many important interests in accessing whether to grant the requested injunction and on what terms".
The court went on to explain how these interests are to be effectively balanced. The court stated that the clear answer could be found in the last 20 years of jurisprudence of the Supreme Court of Canada and in particular the requirement for consultation, negotiation, accommodation and ultimately reconciliation of aboriginal rights and other important, but at times conflicting, interests. The court cited the long line of Supreme Court jurisprudence beginning with R. v. Sparrow, including Haida Nations v. British Columbia (Minister of Forest), Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), and Mikisew Cree First Nation v. Canada (Minister of Heritage). The court found that this clear line of jurisprudence required that where constitutionally protected aboriginal rights are asserted, "injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests". The Court of Appeal cautioned in particular that if the injunction is intended to create a "protest free zone" for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged and that every effort had been exhausted to obtain a negotiated or legislated solution.
After these extensive comments on the duty to consult, the court went on to explore the mitigating factors that should have been considered by the motions judge when sentencing the appellants in this case. The court found that the sentencing principles articulated by the Supreme Court in R. v. Gladue are applicable to sentencing aboriginal contemnors for civil or criminal contempt. The court found that the three factors highlighted in Gladue; namely, the estrangement of aboriginal peoples from the Canadian justice system; the impact of years of dislocation; and whether imprisonment would be meaningful to the community of which the offender is a member, were all at stake in this case. The Court of Appeal concluded that both the monetary and custodial components of the appellants' sentences were too harsh. Accordingly, the court set aside the sentences.
Commentary
The Court of Appeal made a clear statement in Frontenac that it would no longer be acceptable for private parties to seek injunctions as a first response to prevent protest action by First Nations with legitimate aboriginal rights or land claims and then institute contempt proceedings against protestors for failure to comply. The Court of Appeal applied the Supreme Court of Canada's established jurisprudence and held that there is a duty on the Crown, as well as private parties, to negotiate with indigenous communities in order to resolve conflicting interests. Following these decisions, it will be increasingly important for private stakeholders in Ontario with an interest in property over which an aboriginal rights claim has been asserted to be cognizant of, and sensitive to, those indigenous interests.
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