Wabauskang First Nation v. Minister of Northern Development and Mines et al., 2014 ONSC 4424 (Decision) involved a decision of the Director of Mine Rehabilitation (Director) to acknowledge a Production Closure Plan (PCP) submitted by Rubicon Minerals Corporation (Rubicon). The Wabauskang First Nation (WFN), through an application for judicial review, sought to have the Director’s decision suspended on the basis that Ontario failed to fulfill the duty to consult when it improperly delegated the duty to consult to Rubicon. The Ontario Superior Court of Justice (Court) dismissed WFN’s application.

In the Decision, the Court made a significant observation confirming earlier guidance from numerous courts across Canada – it found that if there had been an improper delegation or a failure to fulfill the duty to consult, the remedy would have been against Ontario and not against Rubicon.

Brief Facts

Ancestors of WFN entered into Treaty 3 with Canada in 1873. Today, about 350 WFN members reside on a reserve located in northwestern Ontario. Rubicon’s proposed Phoenix Gold Project (Project) is situated on privately held land within the traditional territory of both WFN and the Lac Seul First Nation, as well as within Region 1 of the Métis Nation of Ontario. Rubicon began consultations with WFN in respect of the Project in 2008, and these consultations continued in 2009 and 2010 while Rubicon pursued its exploration activities.

On February 17, 2011, to continue development of the Project, Rubicon filed its initial PCP with the Ministry of Northern Development and Mines (Ministry). Rubicon articulated its commitment to ongoing consultation with WFN, and the PCP indicated that Rubicon was acting under the guidance of the Director. WFN took the position that their interests, rights and title had not been considered under the PCP and formally objected to the PCP. In response to the Director’s concerns with the adequacy of consultation, Rubicon withdrew its PCP. On October 17, 2011, Rubicon re-filed a revised PCP addressing each of the concerns raised by WFN. The Director acknowledged receipt of the revised PCP on December 2, 2011. Over a year later, on December 20, 2012, WFN made its application to have the Director’s decision suspended.

Decision

The Court relied on the Supreme Court of Canada decision in Haida Nation v. B.C. (Ministry of Forests) for the proposition that Ontario alone had a duty to consult and, where appropriate, accommodate WFN, and that Ontario is permitted to delegate only procedural aspects of consultation to Rubicon. In support of this proposition, the Court cited Haida Nation at para. 53:

The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environment assessments … However, the ultimate legal responsibility for consultation and accommodations rests with the Crown. The honour of the Crown cannot be delegated.

During the relevant time frame, Ontario repeatedly offered to consult directly with WFN, but WFN insisted that it negotiate on its own with Rubicon. Despite WFN’s lack of cooperation, the evidence indicated that Ministry staff were regularly keeping in touch with representatives of both WFN and Rubicon and were routinely keeping the Director informed. Further, decision-makers were consistently at the negotiating table. The Court noted that considerable historical development and mining had already occurred at the site, and the duty to consult had to be considered in that context.

The Court found that Ontario’s process for assessing the actual or potential claim asserted by WFN, and the assessment made by Ontario regarding the Project, was reasonable. While WFN relied on prima facie Aboriginal rights under Treaty 3 in support of its application, WFN did not make any submissions on how Ontario had failed to fulfill its duty to consult regarding these treaty rights.

Ontario did delegate to Rubicon, but only on procedural issues related to asserted and acknowledged treaty rights, including by encouraging Rubicon to participate in the development of the work plan and budget; by promoting meaningful communications; and by ensuring that WFN received sufficient finances to obtain advice from professional consultants. Ontario acknowledged that it had the ultimate responsibility for ensuring appropriate consultation and demonstrated that responsibility in various ways. The evidence indicated that the process established by Ontario to assess potential Aboriginal claims was reasonable and that Ontario did not improperly delegate its duty to consult and accommodate to Rubicon. The Court then went on to make a significant observation; that is, if there had been an improper delegation or a failure to fulfill the duty to consult and accommodate, then the remedy would have been against Ontario, not against Rubicon.