Wahgoshig First Nation v. Solid Gold Resources Corp. et al. [Indexed as: Wahgoshig First Nation v. Ontario]

112 O.R. (3d) 782

2012 ONSC 2323

Ontario Superior Court of Justice,

Divisional Court,

Wilton-Siegel J.

September 4, 2012

Aboriginal peoples -- Duty to consult -- Mining company drilling in First Nation's traditional territory without consulting First Nation -- [page783] First Nation moving successfully for interlocutory injunction prohibiting company from engaging in mineral exploration activities in territory -- Company's application for leave to appeal granted -- Reason existing to doubt correctness of motion judge's decision that company had duty to consult that had been delegated to it by Ontario -- Reason also existing to doubt correctness of decision that First Nation was entitled to injunction against company based on Crown's failure to consult and accommodate and that First Nation had suffered irreparable harm -- Issues raising matters of such importance that appeal should be heard.

SG was a mining exploration company which had obtained mining claims under the Mining Act, R.S.O. 1990, c. M.14 in respect of a claims block which lay within traditional lands of WFN over which WFN asserted treaty and Aboriginal rights. Ontario advised SG that it should consult with WFN regarding its intended mineral exploration. No consultation occurred. WFN served a notice of claim on Ontario and brought a motion for an interlocutory injunction restraining SG from engaging in mineral exploration activities in the claims-block lands. The motion judge held that the operational aspects of the Crown's duty to consult and accommodate can be delegated to third parties directly involved in resource development projects; that the intended claim raised serious issues that merited a full hearing at trial; that, without meaningful consultation and accommodation, there was a significant possibility of harm to WFN's Aboriginal and treaty rights for which damages would not be adequate compensation; and that the balance of convenience favoured granting an injunction. The motion was granted. SG applied for leave to appeal.

Held, the application should be granted.

There was a conflicting decision regarding whether SG was subject to a duty to consult in respect of its proposed exploration programme. The case law did not establish that, in the absence of legislated authority, the Crown can delegate a duty to consult to a third party through a purely administrative action unrelated to the exercise of a statutory power or the satisfaction of a condition of a permit or licence granted by the Crown. Insofar as a duty to consult informed the motion judge's conclusions on a prima facie case against SG and irreparable harm, there is good reason to doubt the correctness of the decision. Insofar as WFN asserted that it was entitled to injunctive relief because of the Crown's failure to consult and accommodate, and irreparable harm arising from SG's proposed drilling programme, there is also good reason to doubt the correctness of that decision. It is important that the court clarify the obligations of the Crown and mining exploration companies when the rights of First Nations may be adversely affected by exploration activities.

APPLICATION for leave to appeal an order granting an interlocutory injunction.

Cases referred to Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, [2004] S.C.J. No. 70, 2004 SCC 73, 245 D.L.R. (4th) 33, 327 N.R. 53, [2005] 3 W.W.R. 419, J.E. 2004-2156, 206 B.C.A.C. 52, 36 B.C.L.R. (4th) 282, 19 Admin. L.R. (4th) 195, 11 C.E.L.R. (3d) 1, [2005] 1 C.N.L.R. 72, 26 R.P.R. (4th) 1, 135 A.C.W.S. (3d) 2; Homalco Indian Band v. British Columbia (Minister of Agriculture, Food and Fisheries), [2004] B.C.J. No. 2804, 2004 BCSC 1764, [2005] 2 C.N.L.R. 63, 137 A.C.W.S. (3d) 413; Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007 16637 (ON SC), [2007] O.J. No. 1841, 29 C.E.L.R. (3d) 116, [2007] 3 C.N.L.R. 181, 157 A.C.W.S. (3d) 460 (S.C.J.); Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 26171 (ON SC), [2006] O.J. No. 3140, 272 D.L.R. (4th) 727, [2006] 4 C.N.L.R. 152, [2006] O.T.C. 712, 150 A.C.W.S. (3d) 467 (S.C.J.); Relentless Energy Corp. v. Davis, [2004] B.C.J. No. 2359, 2004 BCSC 1492, 34 B.C.L.R. (4th) 336, 22 Admin. L.R. (4th) 251, [2005] 1 C.N.L.R. 325, 2 C.P.C. (6th) 329, 135 A.C.W.S. (3d) 139; [page784] Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, [2010] 2 S.C.R. 650, [2010] S.C.J. No. 43, 2010 SCC 43, 225 C.R.R. (2d) 75, 406 N.R. 333, 54 C.E.L.R. (3d) 1, 293 B.C.A.C. 175, [2010] 11 W.W.R. 577, 11 Admin L.R. (5th) 246, 325 D.L.R. (4th) 1, [2010] 4 C.N.L.R. 250, 9 B.C.L.R. (5th) 205, EYB 2010-181052, 2010EXP-3499, J.E. 2010-1926, 96 R.P.R. (4th) 1; Ross River Dena Council v. Yukon, [2011] Y.J. No. 130, 2011 YKSC 84, 343 D.L.R. (4th) 545, 210 A.C.W.S. (3d) 287, [2012] 2 C.N.L.R. 341; Taseko Mines Ltd. v. Phillips, [2011] B.C.J. No. 2350, 2011 BCSC 1675, 64 C.E.L.R. (3d) 84, [2012] 3 C.N.L.R. 298, consd Other cases referred to RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17, 111 D.L.R. (4th) 385, 164 N.R. 1, J.E. 94-423, 60 Q.A.C. 241, 54 C.P.R. (3d) 114, 46 A.C.W.S. (3d) 40; Tolko Industries Ltd. v. Okanagan Indian Band, [2010] B.C.J. No. 29, 2010 BCSC 24; Wahgoshig First Nation v. Ontario (2012), 108 O.R. (3d) 647, [2012] O.J. No. 22, 2011 ONSC 7708, 64 C.E.L.R. (3d) 302, [2012] 3 C.N.L.R. 317 (S.C.J.) Statutes referred to Canadian Charter of Rights and Freedoms, s. 35, (1) Mining Act, R.S.O. 1990, c. M.14 [as am.] Proceedings Against the Crown Act, R.S.O. 1990, c. P.27, s. 7 Quartz Mining Act, S.Y. 2003, c. 14 [as am.] Wildlife Act, R.S.B.C. 1996, c. 488 [as am.] Rules and regulations referred to Rules of Civil Procedure, R.R.O. 1990, Reg. 194, rule 62.02(4) Authorities referred to British Columbia Ministry of Forests, Tree Farm Licence 39 Treaties and conventions referred to James Bay Treaty, Treaty 9

Neal Smitheman and Tracy Pratt, for defendant/moving party Solid Gold Resources Inc. Kate Kempton and Michael McClurg, for plaintiff/respondent. Dennis W. Brown, Q.C., and E. Rias Tzimas, for defendant/ respondent Her Majesty the Queen in Right of Ontario.

[1] Endorsement of WILTON-SIEGEL J.: -- On this motion, Solid Gold Resources Corp. (the "applicant" or "Solid Gold") seeks an order granting leave to appeal the order dated January 3, 2012 of C. Brown J. (the "order"). The order reflected written reasons of the motion judge also dated January 3, 2012 (the "reasons") [(2012), 2011 ONSC 7708, 108 O.R. (3d) 647, [2012] O.J. No. 22 (S.C.J.)].

Preliminary Matter

[2] The applicant has also appealed certain elements of the order that it regards as final to the Court of Appeal. It has [page785] indicated that, if it is successful on the present motion, it will move before the Court of Appeal to consolidate the present appeal and the appeal before the Court of Appeal.

[3] The respondents, Wahgoshig First Nation ("WFN") and Her Majesty the Queen in Right of Ontario ("Ontario"), assert that the five elements of the order should be read as one interrelated whole rather than as a series of individual orders. They argue that the entire order is interlocutory in nature and that, in the interest of avoiding a multiplicity of proceedings, the Divisional Court should assert jurisdiction over the entirety of the applicant's appeals.

[4] As indicated at the hearing of the motion, I consider that the jurisdiction of this court is limited to addressing the appeal before the Divisional Court that has been commenced by the applicant. That appeal is limited to the issues set out in its amended notice of motion dated February 22, 2012. I further consider that the proper forum for addressing the bifurcation issue raised by WFN and Ontario is the Court of Appeal.

Background

Factual background

[5] The reasons set out the factual background to the order. For present purposes, the relevant facts are as follows.

[6] The applicant has obtained mining claims under the Mining Act, R.S.O. 1990, c. M.14 in respect of a claims block set out on Schedule "A" to the order (the "claims block"), which entitled it to conduct exploratory drilling on the claims block lands. The claims block lands are adjacent to the treaty lands of the WFN and lie within traditional lands of the WFN over which it asserts treaty and Aboriginal rights.

[7] In July 2009, Ontario advised the applicant that it should contact WFN to consult it regarding its intended exploration programme. No consultation occurred before the applicant began drilling in the spring of 2011.

[8] On November 9, 2011, WFN served a notice of claim on Ontario pursuant to s. 7 of the Proceedings Against the Crown Act, R.S.O. 1990, c. P.27.

[9] WFN then commenced its motion for an injunction, which was heard by the motion judge on December 20, 2011. As mentioned, the reasons of the motion judge were released on January 3, 2012. The WFN served its Statement of Claim on January 17, 2012. [page786]

The intended WFN claim

[10] The motion before the motion judge proceeded on the basis of a summary of WFN's intended claim set out in its notice of motion. The motion judge described her understanding of the intended claim as follows [at para. 32]: (a) Under authority of the Mining Act, Solid Gold has entered upon certain portions of the traditional territory of the Wahgoshig First Nation and commenced mineral exploration activities there. (b) Such mineral exploration activities have or will have potential adverse effects on the treaty or Aboriginal rights of WFN. (c) The treaty or Aboriginal rights of WFN are protected by s. 35 of the Constitution Act, 1982 [being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the "Charter")] and by the Honour of the Crown. This protection includes the constitutional right to be meaningfully consulted and adequately accommodated where Crown-authorized activities are contemplated that might have an adverse impact on WFN's treaty or Aboriginal rights. (d) Such consultation and accommodation have not occurred. (e) Until such [consultation and accommodation] occurs, the defendant Solid Gold has no legal authority to engage in its mineral exploration activities.

[11] I have proceeded on the basis of the foregoing description of the WFN claim. I would note that the Statement of Claim expands the basis of the claims asserted by WFN against Ontario. In this regard, WFN seeks relief in the form of requested declarations that are arguable broader than the relief described to the motion judge, as well as damages.

[12] In particular, the Statement of Claim seeks a declaration that Solid Gold has breached WFN's Aboriginal or treaty rights under s. 35(1) of the Canadian Charter of Rights and Freedoms and seeks damages from it as well. To the extent that the Statement of Claim may have asserted additional claims and sought additional relief against the applicant or Ontario beyond that contemplated in the notice of motion, I consider that such claims are not before the court on this motion. This is also addressed further below.

[13] I also note two matters pertaining to the position that Ontario has taken in this proceeding.

[14] First, proposed amendments to the Mining Act that would clarify the situation by requiring consultation and accommodation by a holder of mining claims have been passed by the Ontario legislature but have not been brought into force. Ontario has taken the position in this proceeding that a paragraph in the preamble to the current Mining Act nevertheless has the effect [page787] of imposing a duty to consult on holders of mining claims in the absence of such amendments. However, I do not think this can credibly be argued, both on general principles of statutory construction as well as for the specific reason that it would exclude the need for the proposed amendments.

[15] Second, in her reasons, the motion judge states that, on the hearing of the motion before her, Ontario submitted that the duty to consult had been triggered but it opposed the claim for injunctive relief on practical rather than legal grounds. Instead, it urged the motion judge to order that consultation occur concurrently with Solid Gold's exploration activities. On this leave motion, Ontario refrained from acknowledging that a duty to consult had been triggered but supported the order.

The decision of the motion judge

[16] After concluding that the court had jurisdiction to hear the motion notwithstanding the absence of underlying litigation at the time of the hearing, the motion judge applied the three- part test in RJR-MacDonald Inc. v. Canada (Attorney General), 1994 117 (SCC), [1994] 1 S.C.R. 311, [1994] S.C.J. No. 17.

[17] With respect to the serious issue to be tried, the motion judge concluded that [at para. 42] "the intended claim, as summarized in the Notice of Motion, raises serious issues that merit a fulsome hearing at trial". She went on to state as follows, at para. 43:

I am further satisfied, based on the case law before me, that while the ultimate legal responsibility for fulfillment of the duty to consult resides in the Crown, its operational aspects can be, and often are, delegated to those third parties directly involved in the day-to-day resource development projects, such as Solid Gold. The motion judge's view of the nature of the intended claim is addressed below.

[18] The motion judge then addressed the requirement of irreparable harm in two parts. In the first part, the motion judge set out the positions of the parties and Canadian case law which has addressed the concept of irreparable harm in respect of effects on Aboriginal and treaty rights. She concluded this part by stating that Canadian jurisprudence has recognized that industry proponents such as Solid Gold may be liable for their failure to consult, citing Platinex and Taseko, supra. In the second part, the motion judge specifically addressed the applicant's failure to consult the WFN in respect of its drilling programme. She concluded [at para. 58] that the applicant, whom she described as the "delegatee of the operational, on-the-ground aspects of the duty to consult regarding its exploration [page788] activities", made "a concerted, willful effort not to consult" at least until after its 2011 exploration funds had been exhausted.

[19] The motion judge then concluded, at paras. 60 and 61 of her reasons, that WFN had demonstrated irreparable harm:

I am satisfied based on all of the evidence that, without meaningful consultation and accommodation regarding the exploratory mining operations of Solid Gold, involving bona fide dialogue and information sharing between WFN and Solid Gold, facilitated by the presence of the Crown, there is a significant possibility of harm to WFN's Aboriginal and Treaty rights. There has to date been no demonstrated respect for those recognized rights.

I am further satisfied that damages would and could not suffice as compensation, given the rights in issue.

[20] Finally, the motion judge also concluded that the balance of convenience favoured granting the injunction.

The order

[21] The order enjoined the applicant from carrying on any further exploration activity of the claims block for a period of 120 days commencing January 3, 2012. The order required that the parties enter into a process of bona fide, meaningful consultation and accommodation regarding any future activity on the claims block, provided that the costs of any facilitation by an independent third party, if required, were to be borne equally by the defendants in the WFN action and further provided that if the consultation and accommodation process was not productive, WFN was entitled to seek an injunction. In addition, the order dispensed with the requirement for an undertaking for damages.

Standard for Leave

[22] Pursuant to rule 62.02(4) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194, leave to appeal an interlocutory order of a judge of the Superior Court shall not be granted unless (a) there is a conflicting decision by another judge or court in Ontario or elsewhere on the matter involved in the proposed appeal and it is, in the opinion of the judge hearing the motion, desirable that leave to appeal be granted; or (b) there appears to the judge hearing the motion good reason to doubt the correctness of the order in question and the proposed appeal involves matters of such importance that, in his or her opinion, leave to appeal should be granted.

Analysis and Conclusions

[23] Before proceeding, I propose to address two aspects of the WFN action and the reasons that gave rise to the principal issues on this leave motion. [page789]

[24] First, the notice of motion, upon which the motion judge based her reasons, contemplated an action based on the failure of Ontario and the applicant to honour a duty to consult and accommodate in respect of the applicant's intended exploratory drilling programme. It is the position of the WFN that, until such action occurs, the applicant has no legal authority to engage in its exploration activities.

[25] The notice of motion set out the following principal relief which WFN intended to seek in the action, being declarations to the effect that (1) a duty to consult and accommodate has arisen in respect of the applicant's exploratory drilling programme; (2) such duty has not been met; (3) insofar as the Mining Act purports to permit the applicant to conduct such drilling programme, it is unconstitutional as being inconsistent with s. 35 of the Charter; and (4) therefore, the applicant did not have the authority to engage in such activities. WFN says that, while there is no mention of a claim for damages against the applicant in the notice of motion, WFN made it clear at the hearing before the motion judge that it intended to seek damages against the applicant.

[26] It is clear from the foregoing description of the WFN action that WFN asserts a claim against Ontario for failure to honor a duty to consult and accommodate in respect of Solid Gold's exploration programme. It is less clear whether the WFN claim against Solid Gold proceeds on the basis that Ontario delegated procedural aspects of that duty to Solid Gold and that Solid Gold failed to honour such delegated duty. I have considered both possibilities in this endorsement.

[27] Accordingly, the first issue herein is Solid Gold's argument that WFN does not assert a viable claim against it in the underlying action. Solid Gold denies that it is subject to any duty to consult regarding its proposed exploration programme. It says that the Mining Act does not impose any such requirement but instead permits it to conduct its exploration programme as a right pertaining to its mining claims. Accordingly, Solid Gold submits that there can be no prima facie case established against it and, therefore, there can be no injunctive relief ordered against it. It submits that the Crown alone has a duty to consult and any relief ordered must be limited in effect to relief against the Crown.

[28] The second issue herein is WFN's argument that it is entitled to injunctive relief provided it can establish a prima facie case against Ontario alone for breach of a duty to consult and can demonstrate irreparable harm. [page790]

Is the applicant subject to a duty to consult?

[29] The motion judge proceeded on the basis that the applicant was subject to a duty to consult and accommodate that had been delegated to it by Ontario. That is clear, for example, in the reasoning in support of her conclusion that WFN had demonstrated a serious issue to be tried, which is set out above. The motion judge concluded [at para. 43] that "operational aspects" of the duty to consult "can be, and often are, delegated to those third parties directly involved in the day-to-day resource development projects. . . " [emphasis added]. It is also clear from her description of the applicant as the [at para. 58] "delegatee of the operational, on-the-ground aspects of the duty to consult". This conclusion would appear to be based on the statement of McLachlin C.J.C. in Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, [2004] S.C.J. No. 70, at para. 53, to the effect that "[t]he Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development".

[30] However, there is a significant difference between the concept of delegation of procedural aspects of consultation in the manner contemplated by Haida Nation and imposition of a duty to consult on a third party. It is clear from Haida Nation that what is contemplated by McLachlin C.J.C. is that the Crown's duty to consult may be satisfied by the actions of third parties. Typically, consultation by third parties is a requirement of obtaining a licence or permit as in Haida Nation.

[31] There is no suggestion in Haida Nation, however, that, in the absence of legislated authority, the Crown can delegate a duty to consult to a third party in the sense of imposing an obligation on the third party by means of a purely administrative action unrelated to the exercise of a statutory power or the satisfaction of a condition of a permit or licence granted by the Crown. In particular, there is no suggestion that a duty to consult can be delegated in such a manner that the delegatee's breach will subject it to a private action for damages by the First Nation having the entitlement to a right of consultation and accommodation. For example, in Haida Nation, notwithstanding Weyerhauser's obligation under the terms of Tree Farm Licence 39, para. 2.09(g)(ii), the Supreme Court held that Weyerhauser was not subject to a duty to consult or accommodate Aboriginal concerns (see paras. 53 and 80).

[32] If the Crown wishes to delegate operational aspects of its duty, it would appear that it must establish a legislative or regulatory scheme that recognizes, and incorporates within it, the duty to consult in such manner as effectively requires a third [page791] party either to discharge the duty to consult as a condition of receipt or maintenance of a right or interest or to acknowledge that the Crown's discharge of such duty is a pre-condition of a valid interest. The Mining Act does not presently contain such a scheme. The proposed amendments to the Mining Act, which have been passed by the Ontario legislature but have not yet been brought into force, would have such a result.

[33] While McLachlin C.J.C. stated in Haida Nation that third parties may be liable to First Nations, I think it is clear that the statement refers to actions asserted by First Nations against third parties for breach of a duty owed directly by a third party to a First Nation, rather than by the Crown to the First Nation. As such, Haida Nation does not support the imposition of a duty to consult on a third party in the absence of an express delegation.

[34] Consequently, I see no basis in the facts of this case for the imposition of a duty to consult upon Solid Gold. Insofar as the motion judge's decision was based on a conclusion that Solid Gold had a duty to consult, there is, therefore, conflicting jurisprudence and reason to doubt the correctness of the motion judge's decision.

Is there a basis for injunctive relief against the applicant if Solid Gold is not subject to a duty to consult?

[35] In the alternative, WFN submits that, under current jurisprudence, it is entitled to injunctive relief against Solid Gold to protect its asserted Aboriginal and treaty rights even if Solid Gold was not subject to a duty to consult as a delegatee of the Crown. On this basis, WFN asserts that the motion judge did not err in granting the order, regardless of her determination regarding Solid Gold's duty to consult.

[36] WFN submits that the case law establishes that an injunction can be issued against a third party that obtains rights from the Crown if the third party's actions threaten Aboriginal or treaty rights. Insofar as WFN is referring to circumstances such as those which occurred in Tolko Industries Ltd v. Okanagan Indian Band, infra, I agree. However, that case involved competing claims in respect of the same right -- the right to harvest timber in respect of a certain area -- that were both treated as valid. In particular, the validity of the plaintiffs licence from the Province of British Columbia was not challenged by the First Nation. That is a very different case from the intended claim that was before the motion judge, which was grounded in the invalidity of Solid Gold's claims based on a breach of a duty to consult by Ontario and consequential wrongful interference of WFN's treaty and Aboriginal rights. [page792]

[37] WFN also says, with some force, that, as a policy matter, an injunction should be available to protect its asserted treaty and Aboriginal rights pending a determination of the constitutionality of the Mining Act. It says that, absent injunctive relief, the length of time required to obtain a final judgment in its action against the Crown will render the action meaningless.

[38] I have considerable sympathy for the position of the WFN. However, the law in respect of actions directed against third party holders of rights in respect of Crown lands is complex. In my opinion, there is reason to doubt that injunctive relief is available against a third party in respect of the intended action of WFN that was before the motion judge. I propose first to consider the precise nature of WFN's claim, then to consider the jurisprudence relied upon by WFN, and then to set out my conclusions regarding the motion judge's determination on the basis proposed by WFN.

Nature of the WFN claim

[39] The motion judge's description of the intended WFN claim has been set out above. To the extent the claim does not assert that Solid Gold is subject to a duty to consult, it is grounded in a constitutional claim directed against Ontario in respect of the enactment of the Mining Act.

[40] Essentially, the WFN claim alleges that the Mining Act is unconstitutional insofar as it authorizes mineral exploration activities that have or will have potential adverse effects on its treaty or Aboriginal rights without affording the protection of s. 35 of the Charter. On this basis, WFN asserts that the Mining Act provisions permitting holders of mining claims to conduct exploration activities on the James Bay Treaty, Treaty 9 lands are unconstitutional in the absence of provisions requiring the consultation and accommodation required by s. 35 of the Charter. WFN argues that, because Ontario has not discharged its obligation of consultation and accommodation, it does not have the authority to permit Solid Gold to conduct such exploration activities and, therefore, Solid Gold lacks the legal authority to conduct its proposed exploration programme activities on the Treaty 9 lands.

[41] This raises the question of the nature of WFN's claim for damages against Solid Gold. In this respect, I have the following three observations.

[42] First, the WFN claim for damages for breach of its constitutional rights in s. 35 of the Charter is based on a breach of a duty to consult that is asserted against Ontario alone. [page793]

[43] Second, insofar as WFN asserts a claim for damages against Solid Gold, it must be based on the invalidity of Solid Gold's mining claims and consequential absence of right to conduct any activities on the Treaty 9 lands, i.e., its mining claims are invalid by virtue of Ontario's failure to provide for consultation and accommodation in the Mining Act. I note that such invalidity would affect all mining claims issued under the Mining Act, not just those of Sold Gold. It would also raise an issue of the potential liability of Ontario to holders of mining claims in such circumstances.

[44] Third, as mentioned, the WFN claim, as so described, does not include a separate claim against Solid Gold for wrongful interference with WFN's property rights or with WFN's treaty and Aboriginal rights. While the Statement of Claim may go further and allege wrongful interference with WFN's treaty and Aboriginal rights based on Solid Gold's own actions, I think it is clear that the motion judge was not presented with, and did not address in her reasons, any such direct action against Solid Gold. I note, as well, that therefore nothing in this endorsement addresses any potential claim of such nature that may be brought by WFN in the future or may have been added in the Statement of Claim to the intended claim that was before the motion judge.

Jurisprudence relied upon by WFN

[45] WFN relies upon the case law that it says holds (1) that the duty to consult applies to the Crown's actions prior to exploratory activity taking place where mining claims have been staked; and (2) that an injunction against an industry proponent is legitimate where a company undertakes exploratory activity under permits or licences previously granted but where no consultation has occurred notwithstanding the existence of a duty to consult. In my opinion, however, none of the authorities relied upon by WFN address the specific circumstances presented by this proceeding. Further, in my opinion, none of these decisions directly supports the imposition of injunctive relief against the applicant although they do assist in defining the issues in the present proceeding.

[46] The WFN claim does not pertain to the exercise of a statutory power of the Crown by which a third party acquired a right or interest. Sold Gold acquired its mining claims as of right under the Mining Act and thereby became entitled under the Act to engage in an exploration programme. This distinguishes the WFN claim from the case law cited to the court in two respects.

[47] First, while Haida Nation states, at para. 43, that the Crown actions that can give rise to a duty to consult are not confined to the exercise of statutory powers, it does contemplate [page794] some Crown action being taken at the time of issuance of the right or permit that triggers the relevant duty to consult. In this case, however, Solid Gold acquired its mining claims as of right under the Mining Act at an earlier time and thereby became entitled under that statute to engage in an exploration programme without any Crown action.

[48] Most of the decisions cited to the court addressed the sufficiency of the Crown's actions where the existence of a duty to consult prior to the issue of a permit or interest was acknowledged by the parties. None addressed the circumstance in which a statute grants a right or interest to a third party without any Crown action. In several of these decisions, the requirement to consult was incorporated into the applicable legislation as a part of the process of obtaining the relevant permit or licence. In all of these cases, it was understood that the third party right or interest was unenforceable if the Crown had failed to comply with the acknowledged duty to consult.

[49] In particular, in Homalco Indian Band v. British Columbia (Minister of Agriculture, Food and Fisheries), [2004] B.C.J. No. 2804, 2004 BCSC 1764, the third party acknowledged that a prima facie case existed in respect of the Crown's duty to consult and the decision addressed only the issues of irreparable harm and the balance of convenience. It would therefore appear that the licensee was prepared to accept that its licence was dependent upon compliance by the Crown of its duty to consult.

[50] In addition, in Taseko Mines Ltd. v. Phillips, [2011] B.C.J. No. 2350, 2011 BCSC 1675, the First Nation sought an injunction pending judicial review of the issuance of two permits by the Province of British Columbia. As the judge observed, the existence of duties of consultation and accommodation in respect of the issuance process were beyond doubt and the province in fact engaged in a process of consultation and accommodation. The question to be tried was whether the province breached its duties of consultation owed to the First Nation by failing to engage sufficiently in the process of consultation and accommodation.

[51] Second, Haida Nation also makes it clear that the duty to consult arises in respect of contemplated actions, i.e., future actions. In the present case, there was no such present decision or other action contemplated in respect of the applicant's exploration programme.

[52] In Haida Nation, at para. 35, McLachlin C.J.C. stated that the duty to consult arises in respect of proposed actions by the Crown that may affect potential Aboriginal or treaty rights of which it has knowledge. In Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43, [2010] 2 S.C.R. 650, [2010] S.C.J. No. 43, at paras. 45 and 49, McLachlin C.J.C. [page795] expanded on this issue, stating that prior failures to consult will only trigger a fresh duty to consult if there is a present decision in contemplation that has the potential to cause a "novel adverse impact" on a present claim or existing right. Past breaches of a duty to consult are to be remedied in various other ways, including an award of damages against the Crown.

[53] As described above, each of Homalco and Taseko involved consideration of Crown decisions involving the future grant of a right or interest. The WFN claim relates to past actions of Ontario that were taken in respect of the passage of the Mining Act and amendments thereto.

[54] In Ross River Dena Council v. Yukon, [2011] Y.J. No. 130, 2011 YKSC 84, the court held that a low-level duty to consult and accommodate arose under the Quartz Mining Act, S.Y. 2003, c. 14 at the time of registration of mining claims in the form of notice to the First Nations affected. I do not consider the decision to be germane to the issue in the present proceeding. This decision does not address a duty to consult in respect of subsequent exploration programmes by holders of such mining claims nor does it provide any principle for the imposition of such a duty under a "free-entry" system.

[55] The WFN claim is also substantially different from decisions before the court involving applications for injunctive relief in private actions that did not turn on an alleged breach of a Crown duty to consult and accommodate, including, in particular, Tolko Industries Ltd. v. Okanagan Indian Band, [2010] B.C.J. No. 29, 2010 BCSC 24 and Relentless Energy Corp. v. Davis, [2004] B.C.J. No. 2359, 2004 BCSC 1492.

[56] The decision in Tolko Industries Ltd. v. Okanagan Indian Band involved competing claims for injunctive relief within actions commenced by the plaintiff claiming nuisance and the defendant claiming trespass. The First Nation had a recognized Aboriginal right to harvest timber that competed directly with the plaintiff's long-standing timber licence. The First Nation also had a recognized right to evidence-gathering/trail- mapping/artifact-collecting activities, which right was being exercised. Moreover, there was expert evidence of in- ground and above-ground archeological sites of cultural significance. I would note that the court nevertheless granted the plaintiff's application for relief subject to terms to be worked out regarding the necessary steps to preserve archeological evidence. I note that the order in this decision resembles the form of relief proposed by Ontario before the motion judge.

[57] Relentless Energy Corp. v. Davis, supra, also involved substantially different circumstances. In that decision, the applicant [page796] for the injunctive relief was the third party. The applicant was denied an injunction on the basis that it could not demonstrate a strong prima facie case of wrongful interference with its rights by the defendants. The court reached this conclusion on the basis that the rights involved -- a construction permit and a cutting permit -- were, by their terms, not only non-exclusive but also expressly subject to the defendants' rights under the provincial Wildlife Act, R.S.B.C. 1996, c. 488 in respect of the traplines alleged by the defendants to be threatened. Moreover, the case involved treaty lands in respect of which prior case law had established that the Crown had a duty to consult which had not taken place.

[58] I acknowledge that the factual circumstances in the present proceeding are similar to the circumstances in Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2006 26171 (ON SC), [2006] O.J. No. 3140, 272 D.L.R. (4th) 727 (S.C.J.) ("Platinex #1"). However, that decision did not address the legal issue raised in the present proceeding. In that case, the third party and the First Nation had been engaged in an unsatisfactory consultation process prior to the litigation. The motion judge granted an interim, interim injunction for a period of five months. Subsequently, in Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2007 16637 (ON SC), [2007] O.J. No. 1841, 29 C.E.L.R. (3d) 116 (S.C.J.), the injunction was discharged on the basis that the First Nation had a right to ongoing consultation in accordance with a protocol to be put in place. The third party does not appear to have raised the issue of whether it was subject to a duty to consult and therefore whether injunctive relief could be ordered in respect of its activities. There is, therefore, no legal analysis of this issue in these decisions. On the other hand, the motion judge did reject the First Nation's request for injunctive relief to the date of trial. Further, the order ultimately granted in this matter reflected the form of relief proposed by Ontario to the motion judge.

Analysis and conclusions

[59] I turn then to the issue of the availability of an injunction in the circumstances of an absence of a duty to consult of Solid Gold based on the alleged breach of a duty to consult on the part of Ontario. I will address two issues: (1) the availability of injunctive relief against a third party to enforce an alleged breach of a duty to consult of Ontario; and (2) the determination of irreparable harm.

The availability of injunctive relief

[60] The analysis of Haida Nation and Carrier Sekani set out above establishes the need to show a causal relationship [page797] between proposed governmental conduct and the asserted Aboriginal or treaty rights in order to establish a duty to consult for the enforcement of which injunctive relief could be ordered. There are therefore two possible grounds for the order -- the injunctive relief was granted to enforce a duty to consult in respect of enactment of the Mining Act or to enforce a duty to consult in respect of Solid Gold's exploration programme.

[61] Insofar as the injunctive relief was granted to enforce a past breach of Ontario's duty to consult at the time of enactment of the Mining Act, the content of such duty to consult could not have included consultation specifically regarding Solid Gold's proposed exploration programme, which did not exist. Put another way, Solid Gold had no involvement in the action of Ontario giving rise to the duty to consult and could not have been the subject of any claim for damages based on Ontario's breach of any duty to consult at the time of enactment of the Mining Act and any amendments thereto.

[62] While the matter is not free from doubt, there is no support in the case law cited to the court for the grant of injunctive relief against a third party that subsequently obtains rights from the Crown pursuant to the statutory scheme. In particular, I do not see any basis for such relief in the statements of McLachlin C.J.C. in Haida Nation, at para. 13, or Carrier Sekani, at para. 37, upon which WFN relies. I therefore think there is good reason to doubt the correctness of the order insofar as the injunctive relief was granted in respect of the alleged past breach of Ontario's duty to consult.

[63] Insofar as the injunctive relief was granted to enforce a new duty to consult of Ontario arising in respect of Solid Gold's exploration programme, the decision would appear to conflict with Haida Nation and Carrier Sekani. In particular, Carrier Sekani states that a past breach -- in this case, the duty to consult when enacting the Mining Act and amendments thereto -- does not trigger a fresh duty to consult unless a present decision has the potential of causing a "novel adverse impact" on asserted Aboriginal or treaty rights. Absent such circumstances, Carrier Sekani states that WFN can assert other remedies against the Crown, including a claim for damages for the past failure to consult, but cannot assert a present breach of a duty to consult.

[64] As mentioned, the "free entry" system established under the Mining Act does not provide for any action on the part of Ontario in relation to Solid Gold's activities. As a result, the conclusion to be drawn from Haida Nation and Carrier Sekani is that a new duty to consult did not arise at the time that Solid Gold established its exploration programme. On this basis, the [page798] order would appear to conflict with these decisions insofar as it is based on a duty to consult of Ontario in respect of Solid Gold's exploration programme.

The determination of irreparable harm

[65] Although WFN has raised legitimate concerns regarding the risk of harm to, in particular, its sacred sites, there is also reason to doubt the correctness of the motion judge's determination that WFN has established irreparable harm to the standard required in the present circumstances.

[66] WFN submits that the applicant's activities threaten sacred sites of cultural and spiritual significance to WFN, including burial sites and prayer areas. There is evidence that there are such sites on the traditional lands of the WFN. However, there is no evidence regarding the location of these sites. Indeed, completion of targeted anthropological, archeological and land-use studies for the sites where the applicant has drilled and proposes to drill, including identification of the location thereof, are part of the consultation and accommodation envisaged by WFN. Regrettably, at the present time, the only evidence consists of oral statements that are subject to the limitations of the hearsay rule.

[67] While the motion judge found irreparable harm in the present circumstances, the basis for that finding is subject to different interpretations.

[68] The applicant argues that there is no evidence in the record for a factual determination of irreparable harm. Solid Gold says the motion judge appears to have found irreparable harm on the basis that the lost opportunity to be meaningfully consulted and to obtain accommodation for impacts on treaty and Aboriginal rights constitutes irreparable harm by itself. In its factum, Ontario also accepts that the motion judge held that WFN had demonstrated irreparable harm on the basis of the lost opportunity to be meaningfully consulted and accommodated. I am not persuaded, however, that this accurately reflects the decision of the motion judge.

[69] I have proceeded on the basis that the motion judge reached the finding of irreparable harm on the basis of an inference of irreparable harm based on a consideration of the proposed drilling activities of the applicant on traditional lands of WFN and Solid Gold's breach of its duty of consultation and accommodation. This approach is consistent with the approach of the court in Taseko. There is, however, reason to doubt the correctness of the motion judge's determination of established irreparable harm on this basis in the present proceeding for the following reason.

[70] The difficulty in this case is that there is reason to doubt that the evidence of irreparable harm provided by WFN satisfies [page799] the standard established in Homalco, at para. 45, upon which the motion judge based her decision -- being the likelihood or probability or reasonable possibility rather than an absolute certainty. The motion judge proceeded on the basis that the threshold was not met on the evidence alone but was met by supplementing this evidence with the loss of opportunity flowing from Solid Gold's failure to default, i.e., she inferred that consultation would likely have provided evidence that met this standard. If, however, the WFN claim is analyzed without a duty to consult on the part of Solid Gold, the basis for a finding of irreparable harm is limited to the evidence provided by WFN. Accordingly, on the basis of the motion judge's own reasoning, such evidence, on its own, does not meet the threshold for demonstrating irreparable harm.

[71] I accept, however, that the motion judge could also be considered to have relied upon a breach by Ontario of its duty to consult, which makes the analysis more complicated. For this reason, I have not relied on the conclusions expressed herein regarding the motion judge's determinations of irreparable harm in concluding that leave to appeal should be granted.

Conclusions

[72] Based on the foregoing, I conclude that there is a conflicting decision regarding whether Solid Gold was subject to a duty to consult in respect of its proposed exploration programme. Insofar as the existence of a duty to consult of Solid Gold informed the motion judge's conclusion regarding the requirement of a prima facie case against the appellant and her conclusion regarding irreparable harm, there is, therefore, good reason to doubt the correctness of the decision.

[73] Further, insofar as the WFN asserts that it is entitled to injunctive relief against Solid Gold based solely on the Crown's failure to consult and accommodate and demonstration of irreparable harm arising by virtue of the applicant's proposed drilling programme, I think there is also good reason to doubt the correctness of the decision or conflicting jurisprudence, depending upon whether the injunction was granted to enforce a duty to consult of Ontario arising at the time of enactment of the Mining Act or arising in respect of Solid Gold's exploration programme.

[74] We are left therefore with the following highly undesirable situation. The applicant has an unquestioned right to conduct exploratory drilling on the claims block by virtue of the terms of the Mining Act. Absent a finding that the Mining Act is unconstitutional, there may be no basis for finding that the issuance of the mining claims is subject to invalidation by virtue of a failure of Ontario to honour a duty to consult at the time of issuance. [page800] Moreover, there is good reason to doubt that the case law supports the imposition of injunctive relief against the applicant in these circumstances. On the other hand, as WFN notes with justification, the duty to consult of Ontario is of little value if injunctive relief against Solid Gold is not available until such time as its constitutional claim against Ontario is finally determined.

[75] In other circumstances in which the parties have accepted a short-term injunction to permit consultation and accommodation to precede exploration, an injunction has served a useful purpose. Indeed, there are strong practical grounds for such an approach having a view to a long-term relationship that would arise if exploration activities are successful. However, that is not an option where one of the parties directly challenges the existence of a duty to consult. In such circumstances, the court must necessarily address the legal issue. Regrettably perhaps, I do not think that the court has the authority to issue an injunction against a third party, even for a short period, having conditions requiring a consultation exercise, unless the requirements of RJR-MacDonald Inc v. Canada (Attorney General), supra, are met. In any event, the difficulty in the present case is that WFN seeks, and would appear to require, an injunction of a longer-term nature to address its concerns.

[76] In my opinion, these issues raise matters of such importance that the appeal should be heard. Moreover, Aboriginal law is dynamic and evolving, keeping in mind the goal of reconciliation. Behind the issues specifically addressed in the reasons lies the issue alluded to in the reasons of the interaction of Charter rights with existing legislation in circumstances such as the present. As the present proceeding demonstrates, there is conflicting jurisprudence regarding the extent to which a third party can be required to comply with a consultation process where the Crown indicates to the third party that it views this as appropriate notwithstanding a statutory right to proceed otherwise. In the absence of enactment of the proposed amendments to the Mining Act that address the duty to consult in the circumstances presented by this case, it is important that the court clarify the respective obligations of the Crown and mining exploration companies operating in this province toward First Nations whose treaty rights or Aboriginal [rights] might be adversely affected by exploration activities.

Conclusion

[77] Accordingly, leave to appeal the order of the motion judge is hereby granted. Costs of this motion are reserved for the court hearing the appeal of the order.

Application granted.