The Ontario Superior Court in Ginoogaming First Nation v. Her Majesty the Queen in Right of Ontario et al. [1] recently imposed an interim injunction against exploration company Quaternary Mining & Exploration Company Limited (“Quaternary” or the “Company”). The interim injunction restrains the Company from conducting any exploration activities on the traditional lands of Ginoogaming First Nation (“Ginoogaming”) pursuant to an exploration permit issued by the Ministry of Energy, Northern Development and Mines (“ENDM”). [2] The Court also directed the Crown and Ginoogaming to engage in “meaningful consultation” and attempt to reach a resolution. The parties must appear before Her Honour again during the week of January 31, 2022.
Factual Background
Ginoogaming is an Anishinaabe community in Northern Ontario and a signatory to Treaty No. 9. Ginoogaming apparently seeks to prevent any mining activities within its reserve and traditional territory (“Wiisinin Zaahgi’igan”). As such, it seeks a permanent withdrawal of Quaternary’s exploration permit and desires a permanent "moratorium" on any exploration/mining activities within Wiisinin Zaahgi’igan.
ENDM issued an exploration permit to Quaternary in 2019. Ginoogaming did not challenge the permit’s issuance by way of judicial review. Pursuant to the permit, in late May 2020, the Company provided a “mobilization notice” to ENDM. ENDM informed Ginoogaming of the imminent commencement of exploration activities. In June and July 2020, discussions and meetings took place between ENDM and Ginoogaming and its legal counsel at which time Ginoogaming expressed strong opposition to the exploration activities and shared with ENDM research reports that were either underway, or that had been completed, to assess potential archeological resources and to map “cultural keystone places” within Wiisinin Zaahgi’igan. Quaternary voluntarily agreed to temporarily suspend its work program.
The Decision
Ginoogaming sought an interlocutory injunction against the Crown and the ENDM Director of Exploration in the form of a declaration. The Court held that such relief was prohibited by section 22(4) of the Crown Liability and Proceedings Act.
In imposing the interim injunction against Quaternary, the judge applied the three-part test for granting injunctive relief established by the Supreme Court of Canada in R.J.R.-MacDonald Inc. v Canada [3]. On the first prong, the Court held that there were serious issues to be tried namely:
(a) Did the Crown engage in meaningful consultation and accommodation sufficient to discharge its constitutional duty to consult and accommodate Ginoogaming respecting the exploration permit issued to Quaternary?
(b) Do the proposed early exploration mining activities by the Company infringe Aboriginal and treaty rights protected by section 35 of the Constitution Act?
It is not clear what claim against the Company Ginoogaming advances in the action. Both “serious issues” identified by the Court appear to engage the honour of the Crown, including the Crown’s duty to consult and accommodate Ginoogaming before granting the exploration permit. There is extensive jurisprudence that a proponent does not owe a duty to consult Indigenous communities. [4]
Based on the Court’s findings, there had been limited interaction between the Crown and Ginoogaming. The Crown was of the view, however, that accommodation was impossible given the First Nation’s insistence that the permit be revoked, and all exploration prohibited. On the second serious issue, the judge treated “spiritual rights” as an unproven Aboriginal right under section 35 of the Constitution Act holding that there was a serious issue for trial concerning whether Ginoogaming surrendered its “spiritual rights” under Treaty No. 9. Unproven Aboriginal rights/claims give rise to a potential duty to consult by the Crown (not by Quaternary).
On the second prong of the injunction test, the Crown took the position that Ginoogaming failed to establish irreparable harm linked specifically to the proposed exploration activities (i.e., distinct from a generic claim of harm). The Court disagreed finding that Ginoogaming would suffer irreparable harm if an injunction was not granted because the proposed exploration activities could reasonably result in (a) desecration of grave sites and the destruction of other sites of spiritual and cultural significance; [5] and (b) destruction of important wildlife and plant life. [6]
The Court also found that the balance of convenience favoured the First Nation. While Quaternary submitted that it would suffer great harm and that it had done everything reasonable to engage with Ginoogaming (dating back to 2011 when the Company first took an interest in the area), the judge stated that efforts to engage First Nations cannot guarantee a particular outcome and that Ginoogaming was only obligated to engage with the Crown, and not the corporation. [7] Further, the judge contrasted the potentially irreparable harm that would be occasioned to Ginoogaming with the position of Quaternary, who offered no evidence to substantiate its claims about the value of the mining claims, a potential purchaser of, or investors in, the claims, and the precarious financial state of the Company.
Implications
Although the Ginoogaming decision may be partially the result of an unrepresented litigant, [8] it should give rise to concern by exploration and other companies intending to develop on Crown treaty lands.
The potential ability for a First Nation to rely on amorphous “spiritual rights” to halt development could have an adverse impact on resource development investment. There are significant practical and financial impediments to impose effectively a “pre-requisite” that a First Nation map all culturally sensitive sites within its traditional territory prior to exploration activities commencing. Where First Nations are unable to identify specific grave sites or heritage artifacts, there is Ontario legislation that protects sensitive sites. Moreover, a proponent's early engagement with local communities typically includes information exchange and discussions to avoid or mitigate such potential impacts. [9] Presumably, Ginoogaming would not have entertained such dialogue with the Crown or Quaternary, however, given its position that no development activities should take place within its traditional territory.
It will be interesting to see how this case progresses. The interim injunction is in place until further order of the Court – presumably until at least the next appearance before Her Honour in late January 2022. If the Court ultimately grants an interlocutory injunction against the Company prohibiting exploration until the trial of the action, this would have broader adverse implications for the exploration industry.
[1] 2021 ONSC 5866.
[2] The interim injunction previously agreed upon by the parties was extended by the Court.
[3] 1994 1 S.C.R. 311.
[4] Of course, a proponent would be wise to engage and build relationships early with local communities which could be impacted by a project.
[5] The Court stated that, “[o]nce a people’s right to practice their spiritual beliefs is seriously harmed there is no amount of money that can compensate that type of harm”: supra, footnote 1, para 120.
[6] Exploration activities generally have little or no impact on wildlife and plant life given the nature and length of activities and the ease with which impacts can be avoided through dialogue between a proponent and the community.
[7] It is worth noting that, although the Crown evidence was that it had not delegated formally the procedural aspects of the duty to consult to the Company, the Court did not include and consider the engagement of the Company with Ginoogaming. Although this is contrary to well-established jurisprudence, consideration of that evidence is not likely to have changed the outcome.
[8] Which, among other things, led to deficiencies in the affidavit evidence tendered by the Company.
[9] Whether or not formally documented within a MOU or an exploration agreement. Typically, First Nation representatives speak with Elders and land users in the area and attend at the proposed activity site(s). This is similar to what occurs to ensure little if any impact to harvesting from exploration activities.
