Duty to consult questioned in Wahgoshig mining case – by Shawn Bell (Wawatay News – September 26, 2012)

Northern Ontario’s First Nations Voice: http://wawataynews.ca/

As a legal decision, the Sept. 4 finding that Solid Gold Resources will be allowed to appeal its case against Wahgoshig First Nation over mineral exploration on Wahgoshig’s traditional land was hardly remarkable. It was simply a matter of a company asking for and receiving approval to take its appeal to a higher, precedent-setting court.

The finding of the judge, however, has the potential to have far-reaching consequences on whether mining companies have the duty to consult First Nations before conducting exploration on traditional lands.

Justice H.P. Wilton-Siegel’s ruling to give Solid Gold Resources leave to appeal took aim at the duty to consult – specifically, whether Ontario can pass its duty to consult with First Nations to a mining company.

“I see no basis in the facts of this case for an imposition of a duty to consult on Solid Gold,” Wilton-Siegel wrote. “If the Crown wishes to delegate operational aspects of its duty (to consult First Nations) it … must establish a legislative or regulatory scheme (to do so). The mining act does not presently contain such a scheme.”

The case stems from Wahgoshig’s efforts to block Solid Gold from exploring on its traditional lands in an area thought to contain sacred burial sites.

Wahgoshig took the matter to court in January 2012 and won an injunction against the company, forcing Solid Gold to stop its planned drilling program and giving the company 120 days to consult with Wahgoshig.

Rather than consult with the First Nation, Solid Gold responded by asking for a leave to appeal the decision. That leave was granted by Wilton-Siegel’s decision, meaning the case will now come before Ontario’s Court of Appeal.

While Wahgoshig’s legal council Kate Kempton of Olthius Kleer Townshend LLP noted that there is there is no precedence setting value to Wilton-Siegel’s decision, she said her legal team “completely disagrees” with the reasoning of the ruling.

“It’s not just a case about the duty to consult,” Kempton said. “The company is infringing on Aboriginal Treaty rights by looking to explore in a location where there are known burial grounds and sacred sites. You can’t just infringe an Aboriginal Treaty right without justifying that infringement.”

Kempton will have the chance to present Wahgoshig’s case to the Ontario Court of Appeal sometime in the next few months. Solid Gold has already filed the papers for bringing the case to the higher court.

In the meantime, another point made by Wilton-Siegel in the decision brought the case directly into the realm of the Ontario government’s new mining act.

Wilton-Siegel wrote that the current mining act does not contain anything to imply that a company can be held responsible to fulfill the Crown’s duty to consult with First Nations.

“The proposed amendments to the mining act, which have been passed by the Ontario Legislature but not yet brought into force, would have such a result,” he wrote.

Robert Merwin, the director, mining act modernization secretariat with the ministry of Northern Development and Mines, said that the new mining act will provide the Crown the ability to “delegate procedural aspects” of its duty to consult with First Nations.

Merwin explained that companies are often in the best position to describe their project and deal with the practical elements of consultation and accommodation with First Nations.

He added that the new mining act ensures that the Crown helps facilitate the duty to consult by identifying which First Nations a company must consult with, providing capacity within the First Nation to support consultation and setting up an independent dispute resolution body to deal with instances where consultation does not satisfy both parties.

The new mining act amendments have been sent to a government committee for approval. A decision by the committee is expected sometime this fall, Merwin said, at which time, if the government gives the go ahead, the new regulations will roll out.

Comments are closed.