Ontario First Nation wins injunction to stop gold drilling


Tanya Talaga, Queen’s Park Bureau – http://www.thestar.com/news/canada/politics/article/1129591—ontario-fi...

Date of publication: 
10 February 2012

When members of Wahgoshig First Nation spotted a drilling crew on what they say is a sacred burial site, they demanded to know who the strangers were and what they were doing.
The Wahgoshig, whose Algonquin reserve of 19,239 acres is 113 km east of Timmins, running south from Lake Abitibi near the Quebec border, say they were met with silence.
But what was happening on the land was anything but silent, according to court records.
The prospecting work involves clearing 25 sq. metre pads, clearing forest, bulldozing access routes to the drilling sites and the transportation and storage of fuel and equipment.
The workers were with Solid Gold Resources Inc., a junior mining firm that has a 200-square-kilometre prospect at Lake Abitibi near the Porcupine Fault zone. The land they were on, says Wahgoshig band chief David Babin, is not part of the reserve itself but does include the traditional lands the Algonquins have lived on for thousands of years.
“Through history, Wahgoshig First Nation had developed homes around Lake Abitibi. When we died, we buried our people around the rivers and lakes — we didn’t have cemeteries,” Babin says.
Wahgoshig, a community of 250 people, protested to the Ontario government, which in turn told Solid Gold on Nov. 8, 2011, that before any more drilling occurs they must adequately consult with the band.
Solid Gold responded by bringing in a second drilling rig, court documents say.
Last month, Ontario Judge Carole Brown ordered Solid Gold to stop its activity on the site for 120 days. The injunction expires in May. Brown ordered Solid Gold and the government to use that time to properly consult and accommodate the concerns of Wahgoshig.
The ruling has implications for other resource projects on First Nations traditional land — including the $5.5 billion Northern Gateway Pipeline, a high-stakes bid to ship Alberta tar sands oil to China via a new pipeline across B.C. to the coast.
Many B.C. aboriginal groups are line up against that pipeline. Last Saturday, 600 people took to the streets in Prince Rupert to support Hartley Bay First Nation’s opposition to oil tankers coming in to their coastal community near Kitimat, the proposed destination of the pipeline.
Judge Brown ruled she is mindful of Wahgoshig’s position that refusing to enjoin Solid Gold from its drilling will “send a message that aboriginal and treaty rights, including the rights to consultation and accommodation, can be ignored by exploration companies, rendering the First Nations’ constitutionally recognized rights meaningless.”
“This would not be in the public interest. It is in the public interest to ensure the Constitution is honoured and respected,” she wrote.
Solid Gold is seeking leave to appeal the decision. A hearing is scheduled for Feb. 29 at divisional court in Toronto.
Ontario’s Angus Toulouse, regional chief of the Assembly of First Nations, argues that the Constitution’s guarantee of aboriginal rights, and the United Nations Declaration on the Rights of Indigenous Peoples, require that aboriginal people have the right of free, prior and informed consent before any project that may affect their lands can proceed.
“It is appalling that some companies, with the full knowledge and approval of the provincial government, continue to behave in this disrespectful and unacceptable manner,” Toulouse says.
“The fact of the matter is that First Nations know their rights and they are going to resist and they will not give up,” says Toulouse.
Neither will Solid Gold, a company fighting for its financial livelihood.
Solid Gold is a publicly traded firm. According to court documents, the company’s “Legacy Project” mining claim covers 103 unpatented mining claims covering approximately 21,790 hectares — all within what the Wahgoshig say is their traditional lands.
Company president Darryl Stretch says the courts made a “hasty judgment” of a complex issue and he fears his company’s investment in the area will be completely lost.
“People think we are drilling on the burial site or the reserve and these things are just not true,” Stretch says from Vancouver.
Chief Babin begs to differ. He says the prospectors are on sacred land. When told Stretch denies this, Babin retorts: “How does he know?”
Solid Gold told the court it has “no legal responsibility or duty to consult, and that if there is such a duty, it resides in the Crown.”
Solid Gold also argued that Ontario’s Mining Act establishes a “free entry” system whereby all Crown lands, including those subject to First Nations land claims, are open for prospecting and staking, without any consultation or permit required.
A lot of money, jobs and investment are at stake here, says Stretch.
“This is a high-grade gold deposit over mineable woods,” says Stretch. “That spells a lot of money. That is what every mining company wants to get. Instead of one, we think there are two or three deposits we can see already.”
Stretch doesn’t blame his aboriginal opponents for the stalemate.
He says the Crown has not properly carried out its job managing consultation with the Wahgoshig band. Now his company has to figure out what that mean in just 120 days, Stretch argues.
Solid Gold plans to sue the Ontario government for $100 million. (The ministry of northern development and mines refused comment on the case.)
Developers are caught in the middle between the Crown and First Nations all over the country, says Stretch.
The duty to consult and accommodate, which is at the heart of the Solid Gold injunction, resides in the honour of the Crown, Judge Brown wrote.
“While the Crown may delegate operational aspects of the duty to third parties, such as Solid Gold, the Crown bears the ultimate legal responsibility to ensure the duty is fulfilled,” she said.
Yet the Crown took no position on the injunction motion, notes Stretch.
“To bully a pitiful, weak, third-party start-up, throwing it and its investors under the bus for the entertainment of the court and First Nations, is not honourable. Apparently, the Crown and the court owe no honour to its corporations or to the public at large, only to First Nations.”
Brown has ordered the parties to get together and consult properly — something that still hasn’t happened, notes Babin and Wahgoshig’s lawyer, Kate Kempton.
While the injunction itself doesn’t delve into the national constitutional issues at play in such land conflicts, the effect of Brown’s ruling is that the Wahgoshig’s constitutional rights exist and must be safeguarded.
“This is a sacred land to them,” she says. “I don’t want to overreach here and say this is binding precedent. It is precedent but it depends on the fact situation.
“It is fair to say, when there is a contest between rights and interests, and a First Nation is one of the rights holders, the more cases that find in favour of the First Nation and that their rights do count and need to be upheld, the more impact it will have on mining and resources.”
Anna Baggio, director of land conservation for the environmental group the Wildland’s League, suggests Brown’s injunction is such a milestone.
The judge is saying in order for the Constitution to be meaningful, the right to consultation can not be ignored, says Baggio.
“Brown has now made it a public interest that the companies and the provinces take this responsibility very seriously and when they don’t they aren’t acting in the public interest. This is fundamental to our society.”
The Ontario dispute will be heard in B.C., where hearings continue on the Northern Gateway pipeline proposal, Baggio notes. The situation there is even more complicated, because few B.C. tribal groups have signed treaties establishing legal boundaries over their lands.
“In the path of the pipeline, no treaty was signed. This is un-ceded land. So basically you are talking about a true nation-to-nation discussion. They need to negotiate in good faith. Obviously the First Nations are very clear about this, that the discussion is not taking place.
“It is in the public interest that our Constitution is protected. Developers have to be very careful.”