On July 7, 2008, the Court of Appeal released its reasons from two sentencing appeals arising from civil contempt. In both cases, the contempt related to breaches by aboriginal “protestors” of an injunction in favour of a mineral exploration company. The injunction arose from a blockade of a public road by Kitchenuhmaykoosib Inninuwug (“KI”) in the Platinex case and the trespass on, and occupation of, private property by two Algonquin communities in the Frontenac Ventures case. Neither the injunction, nor the ensuing contempt, was appealed by the First Nations. In both instances, the motions judge ordered six months incarceration for the contemnors with the opportunity to discharge fully the custodial term upon the contemnors agreeing to obey the injunction in the future. The appellants refused to purge their contempt and later appealed the sentences. Both appeals were allowed (the appeal on the Platinex matter was not opposed). Although the discrete issue of sentencing on a civil contempt was before the court, the decision speaks broadly about the granting of injunctions in the context of rising tensions between the rights and interests of Aboriginal Peoples and those of industry and nonaboriginal citizens of Canada.

Background

Frontenac Ventures Corporation (“FVC”) is a small uranium exploration company in the first phase of low impact exploration activities. FVC holds several mining claims, mining leases and private agreements on lands located in the Ottawa Valley outside of Sharbot Lake. FVC’s exploration property lies within the 14,000 square kilometers that form the subject matter of a land claim made by the Algonquins of Ontario (“AOO”). AOO represents the interests of nine Algonquin communities through 16 Algonquin negotiation representatives. There are three Algonquin communities in the vicinity of the exploration property: the Shabot Obaadjiwan First Nation (“Shabot”), the Sinimikobi First Nation (“Sinimikobi”) and the Ardoch Algonquin First Nation (“AAFN”). The Shabot and the Sinimikobi are participating in the land claim process through the AOO.

The AAFN is neither participating in the AOO land claim nor has it commenced an independent land claim. In June 2007, members of the AAFN and the Shabot staged an occupation of private property and prevented FVC from accessing its exploration property or conducting any of its exploratory work. The stated reason for the occupation was the alleged failure by Ontario to consult about FVC’s exploration plan and the renewal of a mining lease.

As a result of the occupation, FVC commenced an action and sought an injunction against AAFN, Shabot and its leaders to restrain them from interfering with its access and obstructing its exploration activities. Ultimately, the First Nation defendants decided not to participate in the injunction motion. Mr. Justice Thomson and Associate Chief Justice Cunningham granted an interim and interlocutory injunction in favour of FVC respectively. The blockade continued despite the injunction orders. FVC brought a contempt motion. This motion was adjourned as a term of an agreement to enter into mediation for a twelve-week period, a condition of which was the end of the aboriginal occupation. The twelve-week mediation did not resolve the dispute and the First Nation defendants reinstated conduct contrary to the injunction order. The previously-adjourned contempt motion proceeded.

During the course of the contempt motion, the Shabot leaders agreed to comply with the injunction going forward by providing certain undertakings to FVC and the court. Accordingly, FVC did not seek any contempt sanctions against Shabot1. The AAFN and its leaders Robert Lovelace (prior Chief, spokesperson and principal negotiator of AAFN and a professor at Queen’s University and Fleming College), Paula Sherman (Co-Chief of AAFN and a professor at Trent University) and Harold Perry (Honorary Chief of AAFN) admitted contempt and participated fully in the contempt sentencing hearing. Just prior to the sentence being rendered, Perry agreed to purge his contempt and the company did not seek sanctions against him based on undertakings to the court. Lovelace gave evidence that neither he, nor Sherman, would comply with the injunction in the future. Both were sentenced to six months in jail but with the opportunity for that custodial term to be discharged on the purging of their contempt. Fines of $25,000, $15,000 and $10,000 were imposed against Lovelace, Sherman and AAFN respectively. The motion judge ordered that the AAFN’s statement of defence be struck and no motions or applications be brought to the court on its behalf until the contempt was purged. Shortly after receiving her sentence Sherman “purged” her contempt and undertook to obey the injunction; the motions judge discharged the custodial term.

The Court of Appeal’s Analysis

(a) Injunctions

Although the only issue before the Court of Appeal was the appropriateness of the sentence imposed for contempt of court, the Court also engaged in a discussion on the broader issue of injunctions and when they should be granted in an aboriginal “protest” context. Critical components of this analysis were the rule of law and the Crown’s duty to consult First Nations who assert an aboriginal or treaty right. Relying on a decision arising out of the Caledonia situation, Henco Industries Ltd. v. Haudenosaunee Six Nations, MacPherson J. states that:

[43] In my view, the stage at which the comprehensive and nuanced description of the rule of law expressed in Henco must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982. Such cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunction and on what terms.

On the basis of giving “judicial guidance on the role to be played by the nuanced rule of law when courts are asked to grant injunctions, the violation of which will result in aboriginal protestors facing civil or criminal contempt proceedings”, the Court states that:

[46] Having regard to the clear line of Supreme Court jurisprudence, from Sparrow to Mikisew, 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. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.

The Court went on to say that the court must ensure that the Crown has “fully and faithfully discharged its duty to consult with the affected First Nations” if there is a request for an injunction to create “a protest-free zone for contentious private activity that affects asserted aboriginal or treaty rights”

This “judicial guidance” on injunctions is troublesome. It could be argued that the Court of Appeal is effectively attempting to grant First Nations a “veto” power wherever there is an outstanding land claim regardless of the strength or merits of such claim. This would be contrary to Supreme Court of Canada jurisprudence respecting the duty to consult, which clearly establishes that there is no First Nations veto power. It also appears to be inconsistent, and unnecessarily interferes, with the wellestablished test for the granting of injunctions. Interestingly, the B.C. Court of Appeal held that the existing law on injunctions was not changed because of the Supreme Court of Canada jurisprudence respecting the duty to consult.2 Among other things, the Ontario Court of Appeal discussion not only fails to address sufficiently the practical reality of the business of exploration but it may be suggesting or creating a presumption in favour of Aboriginal Peoples in the balancing of interests. The possibility of a “two tier” system, one test for disputes involving Aboriginal Peoples and one test for other disputes, both in terms of granting injunctions and enforcing them is a dangerous development. If its direction is followed by lower courts in Ontario or elsewhere, exploration companies could be held hostage by aboriginal communities who refuse to negotiate and/or obey court orders and/or governments who have not satisfied their duties. Also concerning is that the Court of Appeal only truly considers the principles of the rule of law in the injunction context and not in the contempt context.

It must be remembered that this case was about sentencing only. Although the comments about the law of injunctions are of serious concern, the decision is not binding on those points.

(b) Contempt Sentences

R. v. Gladue is the authoritative decision respecting the sentencing of aboriginal offenders in the criminal law context. Although acknowledging that Gladue was “focused primarily on the serious problem of excessive imprisonment of aboriginal peoples”, the Court of Appeal applied the Gladue principles to the sentencing for civil contempt of an injunction order. The unique systemic and background factors considered relevant by the Court were.

(a) The existing land claim negotiation between the Algonquin Nation and Ontario.

What is difficult with this proposition is that the AAFN is NOT part of the Algonquin land claim negotiations between the AOO and Ontario/Canada and have not made an independent claim. This factual misstatement raises serious concerns about the soundness of the decision; and

(b) AAFN The nature and content of the province’s Mining Act which, according to the Court, does not consider aboriginal land claims or interests.

(c) Rule of Law

MacPherson J. set aside the custodial and monetary components of the sentence for contempt on the basis that the sentence was too “harsh” for first offenders. The underpinning of the motion judge’s decision was the importance of the rule of law in a democratic society. Fundamentally absent from the Court of Appeal’s analysis is an acknowledgement of this basic tenet and the fact that ACJ Cunningham ordered that if the appellants agreed to “purge” their contempt and obey the injunction the custodial component could be discharged. Lovelace, defiantly refusing to purge, was the author of his own incarceration. His decision was consistent with his testimony: not only did he swear under oath that he would continue to break the law but, as a leader of AAFN, was training and encouraging others to block public roads and otherwise breach the injunction. These aggravating circumstances are not mentioned, or considered, in the Court of Appeal’s decision.

Equally perplexing is the Court’s comments respecting the Shabot contemnors’ undertakings of future compliance with the injunction and how this informs the appropriate sentence for the AAFN contemnors who refused to purge. The Shabot contemnors’ undertakings were made just prior to the contempt sentencing hearing and after a finding of contempt. On the basis of the undertakings, the company did not pursue sanctions for their contempt. It was the contempt proceedings, and undoubtedly the prospect of incarceration, that led to the undertakings. It was only as a result of the undertakings that negotiations could, and did, ensue. To suggest, as the Court did, that there was any “progress” being made with AAFN, or that there could be any progress so long as Lovelace refused to obey the law defies credulity. It is difficult to imagine how there could be any meaningful discussions or negotiations between the company and AAFN as long as AAFN and its leaders continued to defy the law.

Conclusion

Dialogue, discussion, consultation and accommodation are the preferred approach for industry and Aboriginal Peoples alike. The simple reality, however, is that it will sometimes be necessary for private rights holders to resort to the courts when negotiations with aboriginal communities are not possible or have been unsuccessful. Indeed in these circumstances, court proceedings can facilitate discussion and resolution. Although the Court of Appeal concluded that the sentence was too harsh in the circumstances, it did not say that there should be no consequences for showing contempt for a Court order. The Court’s ruling appears, however, to have inferentially endorsed a manner of “self help” and in so doing may have eroded the rule of law as it relates to injunctions and their enforcement vis-à-vis aboriginal contemnors. Instead of encouraging conciliation and resolution, the Court’s decision is more likely to have the opposite effect by encouraging further contemptuous behaviour in difficult situations because of a perceived lack of threat of any meaningful sanction for contempt.