Mining and Resources
The Superior Court of Justice of Ontario affirmed in two recent rulings that the duty to consult and accommodate the concerns of an Aboriginal community whose rights could be affected by mineral exploration activities arose from the time those activities were first proposed. These decisions highlight the strong incentive for the proponents of natural resource development projects to participate in the process of consultation and accommodation of Aboriginal claims. They also indicate the willingness of the courts, in certain circumstances, to play a significant role in supervising the process of consultation and accommodation involving Aboriginal communities, project proponents and government authorities and even to guide the content of negotiations between them.
DECISION NO. 1 OF JULY 2006: THE ABORIGINAL CLAIMANTS OBTAIN AN INTERIM INTERIM INJUNCTION
In an initial ruling handed down in July 2006, Mr. Justice G.P. Smith of the Superior Court of Justice of Ontario had granted the Kitchenuhmaykoosib Inninuwug First Nation (KI) an interim interim injunction, valid for a five-month period, ordering Platinex Inc., a junior mineral exploration company, to refrain from engaging in exploration activities on certain property in respect of which KI had asserted a treaty land entitlement claim. The order was subject to KI setting up a consultation committee which was to meet with representatives of Platinex and the Government of Ontario with the objective of developing an agreement that would allow Platinex to begin its exploration operations. At the time, the Court was of the view that consultations with KI had been incomplete and inadequate.
DECISION NO. 2 of MAY 1, 2007: THE MOTION FOR AN INTERLOCUTORY INJUNCTION IS DENIED
As the parties were unable to agree on the consultation and accommodation process, Justice Smith had to decide whether to extend the injunction. In a second decision, he dismissed KI’s motion for an interlocutory injunction, finding that the evidence before the Court did not bear out KI’s argument that the proposed exploration activities would cause irreparable harm to the land, to the hunting, fishing and trapping activities of KI’s members and to their culture. Justice Smith considered that much of the evidence presented by KI was based on assumptions and fear of what might happen, and was not causally connected to Platinex’s project. He further noted that Platinex had agreed to proceed cautiously and consult KI on an ongoing basis, under the Court’s supervision. As for the balance of convenience, the Court pointed out that halting the exploration activities would cause Platinex to go bankrupt, whereas the impact of the activities on the land appeared insignificant as they would entail drilling a maximum of 80 drill holes, of approximately 2 inches in diameter, in 12,080 square acres of wilderness.
Although he dismissed the motion for an interlocutory injunction, Justice Smith issued an interim declaratory order calling on the parties to continue their discussions for the purpose of arriving at an agreement on the consultation and accommodation process. Mindful of the risk of exacerbating the already problematical relations between KI and Platinex if the application for interlocutory relief were simply dismissed, the Court was of the view that Platinex should not be authorized to proceed with its exploratory operations without some guidelines being provided, and that Ontario, Platinex and KI should continue negotiating, with each of them fully engaged in the consultation process and prepared to make accommodations as necessary. Therefore, the Court would supervise the parties’ conduct, and they could return to the Court if an agreement and accommodations were not forthcoming. Such ongoing supervision would, in the Court’s opinion, serve to promote a more precise balancing of the rights of the parties, with the ultimate goal of achieving a fair resolution of the matter.
The Court did not stop at requiring the parties to continue negotiating. Indeed, it chose to guide the content of the negotiations, declaring that the consultation protocol should address, among other things, the following issues: burial sites, environmental impact of the exploration drilling program, participation of KI in decision-making, compensation and funding of the consultation process. Only if a proper protocol was in place, by agreement between the parties or by court order, could Platinex begin Phase One of its exploration drilling program on June 1.
DECISION NO. 3 OF MAY 22, 2007: THE COURT ORDERS A CONSULTATION AND ACCOMMODATION PROCESS TO BE APPLIED
In his most recent decision, Justice Smith, seeing that discussions between the parties had failed, imposed the consultation protocol, memorandum of understanding and timetable that had been negotiated between Ontario and Platinex and thus gave Platinex permission to undertake Phase One of its exploration drilling program. Continuing its interventions with respect to the content of the negotiations, the Court asked Platinex to retain the services or an archaeologist to identify, in consultation with KI, burial and other archaeologically significant sites within the proposed drilling area, which sites would have to be preserved, with reasonable buffer zones around them.
Justice Smith also noted that appropriate funding was essential to a fair and balanced consultation process and asked the parties to continue their discussions aimed at finding a basis for agreement on this issue. He invited the parties to make further submissions to the Court in the event the dispute over this aspect and over the issue of establishing a community development fund for KI persisted.