Ontario Superior Court of Justice Considers Aboriginal Consultation Obligations under Mining Act

In a January 3, 2012 decision illustrating that the “free entry” mining system in Ontario may be limited by Aboriginal consultation, Madam Justice Carole Brown of the Ontario Superior Court of Justice granted the Wahgoshig First Nation an injunction against junior mining company Solid Gold Resources Inc.  Wahgoshig argued that they must be consulted about prospecting and exploration drilling activities on their traditional territories, raising concerns that exploration is being undertaken near a sacred burial area.  Solid Gold argued that the duty to consult, if any, was the duty of the Crown, and furthermore 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.  Ontario submitted that the duty to consult was triggered, and that it delegated the operational aspects of the duty to Solid Gold, which has not fulfilled the duty.

Madam Justice Brown’s ruling enjoins Solid Gold from continuing its exploration activities for 120 days while the company, the First Nation and the Ontario government undertake meaningful consultations. If those consultations are not productive, the First Nation may return to court to request an extension of the injunction.

Solid Gold has served notice of motion for leave to appeal, and has also indicated that it served notice of motion to the Crown holding it is liable for all losses suffered by Solid Gold.


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