A full panel of the Ontario Superior Court of Justice – Divisional Court made an Order that an appeal of the decision in Wahgoshig First Nation v. Ontario, 2011 ONSC 7708 not be heard, as amendments to Ontario’s Mining Act had rendered the proceeding moot.

On January 3, 2012, Madam Justice Carole Brown allowed an injunction application made by the Wahgoshig First Nation (WFN) to restrain Solid Gold Resources Corp. from engaging in further exploration activities near Lake Abitibi. The WFN forms part of the Lake Abitibi people and is a beneficiary of Treaty 9. Their reserve lands are on the south shore of Lake Abitibi, and they assert that the area around the lake is the birthplace of their people and is sacred. The Court ordered that Solid Gold be enjoined from any further exploratory activities for 120 days, and directed that a “meaningful” consultation process take place between the WFN, Solid Gold and Ontario. This decision was summarized in our e-newsletter of January 24, 2012.

In September 2012, Mr. Justice Wilton-Siegel of the Divisional Court granted leave to appeal this decision: 2012 ONSC 2323. He noted that there were conflicting decisions concerning Solid Gold’s duty to consult, especially in light of the “free entry” regime for mining in Ontario, and held that there was a good reason to doubt the correctness of the chambers order. It was also noted that proposed changes to the Mining Act were not in effect. This decision was summarized in our e-newsletter of September 25, 2012.

On November 1, 2012, the Mining Amendment Act, 2009 came into force in Ontario. It requires holders of mining claims to file exploration plans and apply for exploration permits before commencing their activities where Aboriginal interests may be involved. New regulations do not come into effect until April 1, 2013. However, there is a transitional provision that gives the Director discretion to require compliance with ss. 78.2 and 78.3 of the new Act. These sections would require consultation to take place.

Ontario submitted that the appeal is now moot due to the new legislative regime. The WFN did not object to this position. Solid Gold opposed the Province’s position.

In oral reasons, released on March 12, the full panel of the Ontario Divisional Court agreed that the appeal is now moot. The issue before Madam Justice Brown was limited to whether Solid Gold was required to stop its exploration activities and consult with the WFN. The 120-day time period imposed by the chambers judge has expired. Aston J. commented:

Arguably, the live issue with respect to Wahgoshig First Nation’s constitutional right to require Solid Gold to cease its exploration activities and consult with it, has not been extinguished. However, the recently passed regulations under the Mining Act now explicitly stipulate the rights of interested parties and procedures for mining exploration companies where aboriginal land issues are involved. The rights and obligations of the parties rest, at least in part, on a new foundation.

Prior to April 1, 2013, the applicability of sections of the new Act will depend upon the Director’s discretion under the transitional provisions. Nevertheless, the fact remains that “the current legislative scheme is already different from what existed at the time that the injunction application was heard”. Aston J. stated:

At the core of this matter lies the Crown’s duty to consult with aboriginal populations where Aboriginal and treaty rights are at stake. That issue remains unresolved, but the basis upon which the interim injunction was granted has fundamentally changed. If Wahgoshig First Nation were to seek an extension of the injunction, it would be in the context of the new regulatory scheme. As such, the issue of whether the injunction should have been granted on the basis of the law as it existed at the time of the hearing before C. Brown J. is an academic exercise.

The Court retains the discretion to hear the appeal, despite its mootness, depending upon the public importance of the issue. Solid Gold argued that there was a good reason for the appeal to be heard, in light of the fact that it had initiated a claim against the Crown in which it seeks substantial damages on the basis of negligent misrepresentations by the Crown with respect to the duty to consult the WFN. The Court held that the determination of the propriety of an interim injunction without a full evidentiary record would have little or no bearing on the determination of Solid Gold’s claim against the Crown.

The Court also held that it would be premature to determine the impact of the new legislative regime. If there is a dispute, it will have to be addressed at first instance in an appropriate case. The Court therefore decided not to exercise its discretion to decide the appeal.

Solid Gold asked for a declaration that there is no longer any injunction in place. The WFN asked that the status quo remain pending a decision of the Director or, alternatively, April 1, 2013. The Court declined to make either order. There is nothing formally in place to prevent Solid Gold from resuming its exploration activity. The interim injunction has expired. The Court stated that its decision not to hear the appeal is without prejudice to WFN’s right to seek an extension of the injunction, or a fresh injunction or to request the Director to act under the transitional provisions. The Court then commented:

The rights and obligations of the parties not already enshrined in the constitutional rights of Wahgoshig First Nation ought to be resolved with the new regulatory regime in mind.

The Court therefore declined to hear the appeal on the basis that it is moot. The issue of costs was reserved, and the parties were granted liberty to make submissions.

http://canlii.ca/en/on/onsc/doc/2013/2013onsc632/2013onsc632.html

Scott Kerwin, Partner
Aboriginal Law
BLG, Vancouver
604-604-4029
skerwin@blg.com

Author

Scott Kerwin 
SKerwin@blg.com
604.640.4029

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Aboriginal Law