Injunctions Issued Against Companies for Lack of Aboriginal Consultation

March 2012 | Sarah D. Hansen, Sandra A. Gogal

Two recent decisions in Ontario and British Columbia provide examples of the courts temporarily restraining commercial development for a lack of adequate consultation with affected Aboriginal groups.

Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario et al., 2011 ONSC 7708

In Ontario, the Wahgoshig First Nation (“WFN”) brought a successful application for an injunction prohibiting Solid Gold Resources Corp. (“Solid Gold”) from engaging in mineral exploration activities on its Treaty 9 lands.

WFN claimed that Solid Gold had failed to consult and accommodate WFN’s interests prior to commencing test drilling on its traditional lands. Solid Gold argued that the duty to consult rested solely with the Crown (i.e. the Province of Ontario), and further, that the “free entry” system under the Ontario Mining Act allowed it to enter Aboriginal land to prospect and stake without consultation. The Crown acknowledged that the duty to consult was triggered, but that it had delegated the “operational aspects” of this duty to Solid Gold.

The Ontario Superior Court of Justice applied the three-part test for injunctive relief, namely whether:

  1. there was a serious question to be tried;
  2. WFN would suffer irreparable harm without the injunction; and
  3. the balance of convenience favoured granting the injunction.

The Court found that the ultimate responsibility for consultation rested with the Crown, but that operational aspects of this duty could be delegated to Solid Gold. Solid Gold was unable to prove to the Court that it consulted with WFN, and in fact, there was evidence that Solid Gold had purposively avoided consultation altogether. The lack of consultation prior to drilling created the possibility that WFN might suffer irreparable harm to sites of cultural and spiritual significance, which sites were previously identified by the Ministry of Natural Resources. In the end, the balance of convenience favoured granting the injunction, as it was in the public interest to protect and give meaning to WFN’s constitutional rights.

The Court ordered Solid Gold to refrain from engaging in exploration activities for a period of 120 days, during which time it had to engage in meaningful consultation with WFN. Should the consultation not be productive, WFN was given the option of applying for an extension of the injunction.

Halalt First Nation v. North Cowichan (District), 2011 BCCA 544

In British Columbia, the Halalt First Nation (“HFN”) achieved another victory in its fight against a water well project being developed by the District of North Cowichan (the “District”). HFN successful argued on an appeal brought by the District that the injunction ordered against the development of the Chemainus Wells Project (the “Project”) should be upheld.

The injunction was originally granted by the Supreme Court of British Columbia on the basis that the District and the Crown (i.e. the Province of British Columbia) had failed to properly consult with HFN during the development of the Project. The Court found that HFN had relatively strong claims of Aboriginal title to the Chemainus River and Aquifer, and accordingly, the Crown was under a duty to engage in “deep consultation.” However, HFN was not told about the negative results of an environmental impact assessment and was not consulted about the subsequent revisions made to the Project. Without proper consultation, such changes represented potential irreparable harm to HFN’s interests. The Court also found that the modifications to the Project did not amount to adequate accommodation.

As in Wahgoshig, the Court of Appeal for British Columbia used the three-part injunction test, but this time in respect of the interests of the District (as the applicant). The Court found that there was a serious issue to be tried, but that the District would not suffer irreparable harm if the injunction were upheld, as the Project was not needed to supply potable water. The District argued that it was acting in the public interest by providing clean drinking water, but the Court found that the public interest included the interests of HFN. The Court concluded that the balance of convenience favoured upholding the injunction, as HFN’s constitutional rights would be infringed by allowing the Project to operate without proper consultation and accommodation.

The Court directed that any actions or decisions pursuant to the environmental assessment certificate be stayed pending adequate consultation and reasonable accommodation.

Both of the foregoing cases highlight the need for companies to engage in meaningful Aboriginal consultation early in the process to avoid conflict and delays down the road.

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