The Lawyers Weekly - April 20, 2012

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Courts shed light on consultation

Ever since the Supreme Court’s landmark Haida decision in 2004, companies, governments and aboriginal communities have been making sense of the “duty to consult” when a contemplated action may adversely affect an aboriginal right or title.

A scan of the financial section
of Canadian daily newspapers
shows that, while some compan-
ies are consulting about environ-
mental impacts and entering into
agreements with aboriginal com-
munities to provide employment,
very challenging.

JULI
ABOUCHAR

When silence isn’t golden

After weeks of procedural delays — during which drilling continued — Wahgoshig First Nation (WFN) won an injunction against Solid Gold Resources Corp. to halt all mineral exploration on Crown lands south of its reserve on the shores of Lake Abi-tibi in Northern Ontario, near the Quebec border.

In its action, WFN said
the company’s drilling could
have an adverse effect on
its treaty and aboriginal
rights, disrupt hunting
and trapping, and perma-
nently damage burial and
other sacred sites. It
sought to enjoin Solid
Gold from further explor-
ation for its failure to con-
sult or accommodate.
Solid Gold’s Legacy

WMFN was concerned about the impacts that mining exploration could have on the hunting of caribou in an area southwest of Moberly Lake near Chetwynd, B.C.

“

advised Solid Gold to contact WFN regarding its intended mineral exploration — and offered to facilitate the process — no consultations were undertaken before drilling began in the spring of 2011. Solid Gold argued that granting injunctive relief would essentially shut down its operations and that the Mining Act establishes a “free entry” system in Ontario whereby all Crown lands are open for prospecting and staking.

In an Ontario Superior Court
decision released Jan. 3, Justice
Since the injunction, a
facilitator was brought in
and discussions involving
Sold Gold, Wahgoshig and
the Ontario government are
continuing. The injunction
is set to expire in early May.

fully sought a stay of a permit for advanced exploration proposed by First Coal Corp. on Crown lands where WMFN has treaty rights to hunt. WMFN was concerned about the impacts that mining exploration could have on the hunting of caribou in an area southwest of Moberly Lake near Chetwynd, B.C.

The majority (two to one) of the B.C. Court of Appeal confirmed the lower court’s decision to stay the permit. The Supreme

Court of Canada denied leave to appeal the decision in February,

so the B.C. Court of Appeal decision stands.

See Duty Page 15

Juli Abouchar, Willms & Shier Environmental Lawyers LLP

project comprises 103 unpatented mining claims covering 21,790 hectares within WFN’s traditional territory. Drilling was occurring on lands deemed by the Ministry of Natural Resources as an “area of cultural heritage potential” and which WFN says encompass the core of its cultural identity.