The Ontario Superior Court of Justice issued its latest ruling in the Platinex case on May 22, 2007.
The KI (formerly known as the Big Trout Lake First Nation) is an indigenous Ojibway/Cree First Nation in northwestern Ontario within the boundaries of the James Bay Treaty (Treaty No. 9). Pursuant to Treaty 9, KI had ceded its land to the Crown but had retained hunting, fishing and harvesting rights on the Crown lands. In 2000, the KI commenced a land claim, seeking to expand its reserve by 200 square miles and declared a moratorium on all development activities on its traditional lands pending resolution of its claims.
In the summer of 2006, Platinex, a junior mining exploration company, pursued its mining claims and leases on provincial Crown lands located in the traditional territory of the KI. The First Nation proceeded to block Platinex’s access to its mining claims and leases. While some consultation had taken place between the company and the First Nation, the government of Ontario had not been involved in any consultation up to that point in time.
On July 28, 2006, the Court issued an interim injunction in favour of the First Nation. The injunction was conditional upon KI immediately establishing a consultation committee to meet with representatives of Platinex and theOntariogovernment with the objective of developing an agreement to allow Platinex to conduct its two-phase drilling program. The parties met but failed to reach an agreement. KI then sought an extension of the injunction.
On May 1, 2007 the Court decided not to extend the injunction and ruled that, by May 15, 2007, the parties were to implement the consultation protocol, timetable and memorandum of understanding (MOU) that had been proposed by Platinex and agreed to by the Crown. The Court expressly reserved the right to make whatever order(s) were required in the event that the parties could not come to an agreement. The parties failed to reach an agreement. Therefore, on May 22, the Court imposed the proposed consultation protocol, MOU and timetable, and gave Platinex permission to commence phase one of its drilling program.
In its decision, the Court recognized that consultation and accommodation are ongoing processes that may take several months. The Court expressly encouraged the parties to continue to engage in meaningful, good faith discussion with a view to gaining an appreciation of the perspective of the other and achieving a long-term relationship based upon trust, respect and understanding.
This decision reflects the Court’s willingness to move these processes forward with appropriate decisions and in the direction of reconciliation, as first expressed by the Supreme Court of Canada in Haida.