Michael McClurg

The appellant mining company appealed an interim injunction that halted its exploration activities and required consultation with the respondent First Nation.

Prior to the appeal, the Mining Amendment Act, 2009 came into force, establishing a new legislative regime for exploration plans and permits involving Aboriginal interests.

The Divisional Court declined to hear the appeal, finding it moot because the rights and obligations of the parties now rested on the new statutory foundation, rendering the propriety of the original injunction an academic exercise.

The moving party, a mining exploration company, sought leave to appeal an interlocutory injunction that restrained it from engaging in mineral exploration activities on lands subject to asserted treaty and Aboriginal rights of the responding First Nation.

The motion judge had granted the injunction based on the Crown's failure to consult and accommodate, finding that the operational aspects of the duty to consult had been delegated to the mining company.

The Divisional Court granted leave to appeal, finding good reason to doubt the correctness of the motion judge's decision that the company had a delegated duty to consult and that an injunction could be issued against a third party based on the Crown's failure to consult.