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April 01, 2012

Courts Shed Light on Consultation

Recent cases provide further guidance on Duty to Consult

Ever since the Supreme Court’s landmark Haida decision in 2004, companies, governments and aboriginal communities have been making sense of the “duty to consult” when a contemplated action may adversely affect an aboriginal right or title.

A scan of the financial section of Canadian daily newspapers shows that, while some companies are consulting about environmental impacts and entering into agreements with aboriginal communities to provide employment, business opportunities and even partnering, smaller companies are finding the process to be very challenging.

Decisions across Canada have shed light on the duty and show that the courts will hold the Crown and companies to consultation obligations before beginning mineral exploration on Crown lands that lie within the traditional territory of First Nations.

Two recent decisions from Ontario and British Columbia make an interesting comparison.

When silence isn’t golden

After weeks of procedural delays — during which drilling continued — Wahgoshig First Nation (WFN) won an injunction against Solid Gold Resources Corp. to halt all mineral exploration on Crown lands south of its reserve on the shores of Lake Abitibi in Northern Ontario, near the Quebec border.

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. It sought to enjoin Solid Gold from further exploration for its failure to consult or accommodate.

Solid Gold’s Legacy project comprises 103 unpatented mining claims covering 21,790 hectares within WFN’s traditional territory. 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. Solid Gold argued that granting injunctive relief would essentially shut down its operations and that the Mining Actestablishes a “free entry” system in Ontario whereby all Crown lands are open for prospecting and staking.

In an Ontario Superior Court decision released Jan. 3, Justice Carole J. Brown granted a 120-day injunction and ruled 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.

Since the injunction, a facilitator was brought in and discussions involving Sold Gold, Wahgoshig and the Ontario government are continuing. The injunction is set to expire in early May.

No action but there’s talk

West Moberly First Nations (WMFN) successfully sought a stay of a permit for advanced exploration proposed by First Coal Corp. on Crown lands where WMFN has treaty rights to hunt. WMFN was concerned about the impacts that mining exploration could have on the hunting of caribou in an area southwest of Moberly Lake near Chetwynd, B.C.

The majority (two to one) of the B.C. Court of Appeal confirmed the lower court’s decision to stay the permit. The Supreme Court of Canada denied leave to appeal the decision in February, so the B.C. Court of Appeal decision stands.

First Coal’s advanced exploration program involved 173 test holes, construction of a network of roads and removing 50,000 tonnes of coal. The proposal would test new technology in which a series of trenches dug at right angles to mountainside coal seams and accessed by launch vehicles replaced open pit and underground mining. The proposed location was in a core area for WMFN’s traditional seasonal round. The caribou herd had been depleted and in its view the permit did not adequately protect and restore these caribou.

In this case, First Coal, WMFN as well as three relevant government ministries engaged in consultation for almost two years. WMFN proposed a set of accommodation measures, and the Crown took steps to mitigate the impacts, although not the ones requested by WMFN.

The question for the court was not whether there had been consultation but whether it was meaningful.

Chief Justice Lance S.G. Finch of the B.C. Court of Appeal stated that a reasonable process “recognizes and gives full consideration to the rights of aboriginal peoples, and also recognizes and respects the rights and interests of the broader community.”

The consultation process does not guarantee the success of the First Nations’ interest; however, “without a reasoned basis for rejecting the petitioners’ position, there cannot be said to have been meaningful consultation.”

Justice Finch found that lacking a reasoned explanation for not accepting WMFN’s position, the consultation was not meaningful. Mr. Justice Christopher Hinkson concurred with him.

Madam Justice Nicole J. Garson, in dissent, found that the consultation process was directly responsive to the concerns raised by WMFN, and pointed to accommodations made to protect the existing caribou herd.

While the West Moberly decision sheds some light on meaningful consultation, the dissenting opinion reminds us that the way forward for those engaged in consultation is not always clear.

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