Ontario Superior Court Ruling Outlines Importance for “Meaningful Consultations” in Mining Exploration

sccTHUNDER BAY – Editorial – Solid Gold Resources is a junior mining exploration and development company, which has been exploring a two hundred square kilometer claim at Lake Abitibi near the Porcupine Fault zone in Northern Ontario. The Ontario Superior Court have ordered a 120 day halt in their exploration efforts. The judgement states that “The duty to consult and accommodate, which is at the heart of this injunction motion resides in the honour of the Crown. While the Crown may delegate operational aspects of the duty to third parties, such as Solid Gold, the Crown bears the ultimate legal responsibility to ensure the duty is furfilled”.

Reading the Superior Court ruling by Justice Brown it certainly appears this dispute is far from over.

“The Plaintiff, Wahgoshig First Nation (“WFN” or “Wahgoshig”) brings this motion for an interlocutory injunction restraining the defendant, Solid Gold Resources Corp. (“Solid Gold”), from engaging in all activities relating to mineral exploration in the area of Treaty 9 lands, and an order that Her Majesty the Queen in Right of Ontario (“Ontario” or “the Crown” or “the Province”) provide an undertaking in damages to Solid Gold or, in the alternative, an order dispensing with the undertaking requirements of R.40.03 of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194.” (Source: www.canlii.ca)

The ruling may set in place the strongest precident yet that consultations with First Nations are a key component. The injunction was sought by the Wahgoshig First Nation. Justice Brown in her ruling handed down this week stated, “No consultation occurred before Solid Gold’s drillng began in the Spring of 2011”.

Ring of FireIt also appears, once again that the Ontario Government is not taking their responsibility as seriously as it could, or should. Mining is being seen as a glittering economic jewel in our province and region’s future. The failure to fully, and openly engage in meaningful consultations with First Nations may put the boots to that opportunity.

From the facts of the case, in the ruling, “The Treaty 9 lands upon which the Claims Block sits were the subject of a preliminary survey done by the Ministry of Natural Resources in 1995 which determined that the Treaty 9 lands are an ‘area of cultural heritage potential;. The study was stated to ‘serve as a preliminary planning tool to indicate the areas that require field assessment prior to land disturbance though timber harvesting or other development activities”.

Even when the First Nation discovered that the drilling was being done on these lands, and when the Crown told the company that consultations must occur, nothing happened. Even once a Notice of Claim was served on Solid Gold, the company continued drilling. In fact a second drill rig was brought in.

It almost appears that Ontario is taking a “hands off” approach to the issue of consultations for which it “bears the ultimate legal responsibility”. Solid Gold Resources told the Superior Court that “it has no legal responsibility to consult, and that if there is such a duty it resides in the Crown”. The company also told the court, “The Mining Act, R.S.O. 1990 M.14 establishes a ‘free entry’ system whereby all Crown lands, including those subject to Aboriginal land claims are open to prospecting and staking, without any consultation or permit required”.

What is interesting from the court documents is the assertion from Ontario. “The province takes no position in this motion. It submits that the duty to consult has been triggered and that the Court’s assistance is required to fashion a consultation remedy that promotes reconciliation by fairly balancing the right of WFN to be properly consulted and the right of Solid Gold to cary out early stage mineral exploration on its unpatented mining claims”.

The Ontario Government could be setting the case for the province ending up compensating mining companies. In December 2009, Platinex reported, “Platinex has agreed to surrender its claims and leases and settle the outstanding litigation on Big Trout Lake in exchange for an upfront sum totaling $5 Million dollars in addition to the Company’s expenses throughout the Mediation process”.

The Wahgoshig injunction ruling builds on the precident set by the Kitchenuhmaykoosib Inninuwug First Nation (KI) v Platinex case in 2007. Justice Brown cited that case in her decision.

“It is critical to consider the nature of potential loss from an Aboriginal perspective. From that perspective, the relationship that Aboriginal peoples have with the land can not be understated. The land is the very essence of their being. It is their very heart and soul. No amount of money can compensate for its loss. Aboriginal identity, spirituality, laws, traditions, culture and rights are connected to and arise from this relationship to the land. This is a perspective that is foreign to and often difficult to understand from a non-Aboriginal viewpoint”.

Further the court ruling says, “In Platinex, it was held at paras. 79 and 89 that ‘For consultation to have any meaning, it must take place “before any activity begins and not afterward or at a stage where it is rendered meaningless” and that harm from such a result cannot be compensated for by way of damages”.

The Wahgoshig First Nation is moving through the courts to further legal actions past seeking the injunction to halt exploration.

Solid Gold reported on December 21st that “Drilling continues in the area of the SG 09 discovery where high grade gold was discovered earlier this year”.

Justice Brown J. in her ruling, “The Crown advised Solid Gold in July 2009 that Solid Gold should contact WFN to consult regarding its intended mineral exploration and offered to facilitate the process. Solid Gold failed to engage in any consultation with WFN prior to commencing its exploratory drilling in or about March of 2011. Indeed, the evidence indicates that it chose to complete the IPO “before any contact with Aboriginals”. Moreover, it chose to raise money through flow-through shares, which monies had to be expended before year-end 2011, despite its knowledge that the consultations with WFN were inadequate and drilling should be suspended until it occurred”.

In ruling for the First Nation, another precident has potentially been established. The impact overall is that for mining companies, having meaningful consultations with First Nations has increased importance.

It is possible that one of the solutions will be for actual partnerships between mining companies, and First Nations as a path forward might be a better way forward. For the Ontario Government it is also likely that unless there is a far more direct effort to ensure that those consultations happen, our province could face further problems in the future.

James Murray
Chief Content Officer

Update: In a Sun Media report: Darryl Stretch, president of Solid Gold, said it was a “very bad day for mineral and mining exploration in Canada.”

He told QMI Agency his company had gone through the proper channels with the provincial government only to be “blindsided” by unresolved treaty claims.

“I have to tell you, I have a lot of animosity towards the Crown (province) right at this moment,” Stretch said. “I spent $5 million of shareholders’ money and invested it in that area because the Crown invited us to do that — in fact, encouraged us to do that.

“And at the time we began that process in 2007, knowing we were going to have a good gold mining market and it was going to be a good time to explore, it was one of the best places on the planet to explore because the Mining Act allows us to go in there, do what was necessary and still take care of the environment, the Cemeteries Act and all the other things explorers have to do in the 21st century. We did all of those things, and we get blindsided by First Nations.

“All they have to do anymore is say, ‘Oh, that’s sacred ground over there. We don’t know where the bodies are but it’s up to you guys to go find them for us. And until you’ve done that, it’s all sacred ground. And you can’t do anything there until you get our permission.’ ”