Court File and Parties
CITATION: Wabauskang First Nation v. Minister of Northern Development and Mines et al, 2014 ONSC 4424
COURT FILE NO.: 585/12
DATE: 20140828
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
HACKLAND R.S.J., MATLOW and KITELEY JJ.
BETWEEN:
Wabauskang First Nation Applicant
– and –
The Minister of Northern Development and Mines, the Director of Mine Rehabilitation for the Ministry of Northern Development and Mines, and Rubicon Minerals Corporation Respondents
COUNSEL:
Bruce Stadfeld McIvor and Kathryn Buttery, for the Applicant
Walter Myrka, Manizeh Fancy and Christine Perruzza, for the Minister of Northern Development and Mines and for the Director of Mine Rehabilitation for the Ministry of Northern Development and Mines
Geoff R. Hall and Thomas Isaac, for Rubicon Minerals Corporation
HEARD AT TORONTO: April 15, 16 and 17, 2014
REASONS FOR JUDGMENT
KITELEY J.
[1] This is an application by the Wabauskang First Nation (“WFN” or the “Applicant”) for judicial review of the decision of the Director of Mine Rehabilitation (the “Director”) for the Ministry of Northern Development and Mines (“Ministry” or “MNDM”), dated December 2, 2011, in which the Director acknowledged the Production Closure Plan (“PCP”) submitted by Rubicon Minerals Corporation (“Rubicon” or the “Proponent”) in respect of the Phoenix Gold Project (the “Project”). The Applicant seeks to have the decision suspended or quashed principally on the basis that Ontario failed to meet its constitutional, statutory and common law duty to consult and accommodate the WFN. For the reasons that follow, the application is dismissed.
Background
[2] In support of the application, counsel delivered the affidavit of Leslie Cameron (Chief of WFN), sworn October 30, 2013. Counsel for Rubicon delivered the affidavit of Darryl Boyd (Manager of Regulatory Affairs during the period in question and currently Corporate Director of Health, Safety and Sustainability), sworn November 23, 2013. Counsel for Ontario delivered the affidavit of Cindy Blancher-Smith (Director of Mine Rehabilitation for the Ministry of Northern Development and Mines during the period in question and currently Assistant Deputy Minister), sworn February 4, 2014. Blancher-Smith was the Director whose decision is the subject of this application.
[3] In 1873, ancestors of WFN entered into Treaty 3 with Canada. The full text of the treaty is found as an appendix to the reasons of the Court of Appeal’s decision in Keewatin v. Ontario.[^1] Excerpts relevant to this application include the following:
The Saulteaux Tribe of the Ojibbeway Indians and all other the Indians inhabiting the district hereinafter described and defined, do hereby cede, release, surrender, and yield up to the Government of the Dominion of Canada for Her Majesty the Queen and her successors forever, all their rights, titles and privileges whatsoever to the lands included within the following limits that is to say: … [Description comprises 55000 square miles] …
To Have and to Hold the same to Her Majesty the Queen and her successors forever.
And Her Majesty the Queen hereby agrees and undertakes to lay aside reserves for farming lands . . .
Her Majesty further agrees with her said Indians, that they the said Indians shall have [the] right to pursue their avocations of hunting and fishing throughout the tract surrendered as hereinbefore described subject to such regulations as may from time to time be made by Her Government of Her Dominion of Canada and saving and excepting such tracts as may, from time to time, be required or taken up for settlement, mining, lumbering or other purposes by her said Government of the Dominion of Canada, or by any of the subjects thereof duly authorized therefor by the said Government.
[4] Chief Cameron’s evidence was that WFN’s rights under Treaty 3 are essential to their survival as Aboriginal people and that it is through the continued exercise of treaty rights that the WFN maintains its relationship to their land and their ancestors. The mandate of the Chief and WFN Council is to ensure that treaty rights are protected and preserved for future generations. There are currently about 350 members of the WFN in a community on a reserve located approximately 38 kilometres south of Ear Falls.
[5] Rubicon is a publicly-traded mineral exploration and development company that focuses on high-grade gold producing areas in North America, including Alaska, Nevada, and Ontario. Its main project is the development of a potential gold mine known as the Phoenix Gold Project, which is located in northwestern Ontario (within the Treaty 3 area). The proposed mine is approximately 14 kilometres north of Red Lake, which is approximately 535 kilometres northwest of Thunder Bay.
[6] The Phoenix Gold Project site is located on privately held land within the traditional territory of both WFN and the Lac Seul First Nation (“LSFN”) as well as within Region 1 of the Metis Nation of Ontario (“MNO”). The site consists of 16 patented claims, 25 licences of occupation, one staked claim, and one mining lease. It has been privately owned land for over 60 years.
[7] Having reviewed the historical documents, Boyd deposed that exploration in that area began in the 1920s when eight claims were staked by McCallum Red Lake Mines Ltd. In the 1930s and 1940s, Wilson Red Lake Gold Mines Ltd. conducted stripping, trenching, and diamond drilling. In 1944, McFinley Mines Ltd. acquired the mining claims at the site and conducted magnetometer surveys, geological mapping, and further trenching and diamond drilling. In 1957, McFinley completed a mine shaft to a depth of 129.0 metres. In the 1980s, McFinley added mining infrastructure and continued to develop the site by engaging in the following activities:
(a) establishing surface infrastructure needed to access an underground shaft, namely a headframe and a hoisting plant;
(b) establishing a pumphouse on the shoreline to pump water from the lake;
(c) excavating underground workings and conducting bulk sampling;
(d) conducting 69,000 metres of diamond drilling;
(e) constructing a bulk sample processing plant (i.e. a mill) and processing thousands of tonnes of bulk sample material;
(f) constructing a tailings facility; and
(g) constructing an access road to the mine site that connects to the public highway in the Municipality of Red Lake.
[8] In 2002, Rubicon acquired an option on the property. The Phoenix Gold Project site is approximately 55 hectares in size. Of that, approximately 35 hectares constitute a “brownfield” site, which means it was an abandoned mining site that had been in various stages of exploration and development for a long period of time.
[9] Mining involves a number of stages that occur in a sequence, which is known as the “mining sequence”. The mining sequence covers all aspects of mineral exploration and development, including prospecting, early, and advanced mineral exploration; extraction of the desired materials (often referred to as “mine production”); and, once a mine is closed, the restoration of all lands to their former use. Blancher-Smith described the stages of the mining sequence as speculative because, only if a stage in the mining sequence proves successful will it lead to the next step in the process. The Phoenix Gold Project entered the mining sequence at the advanced mineral exploration stage. This application deals with the production stage.
[10] The Proponent must file closure plans at the advanced exploration stage and again at the mine production stage.
[11] According to Blancher-Smith, the Ministry’s Mines and Minerals Division administers the Mining Act, R.S.O. 1990, c. M.14, and seeks to ensure equitable access to Crown lands for the exploration for mineral resources; the efficient management of mining lands and leases; safe and environmentally sound mineral development; and the rehabilitation of mining lands. She said that the Mines and Minerals Division strives to develop positive relationships with Aboriginal communities, both through the mineral development staff and a dedicated Aboriginal Relations Branch. She also said that, consistent with the purpose of the Mining Act, the Ministry is committed to meeting its duty to consult obligations with Aboriginal communities, and the Ministry strives to ensure that activities within its jurisdiction occur in a manner that is consistent with the Crown’s obligations concerning Aboriginal and treaty rights.
[12] The Director of Mine Rehabilitation is responsible for exercising statutory discretion either to acknowledge receipt of certified closure plans or to return them for re-submission if they do not sufficiently address all of the prescribed reporting requirements. The Director must do so within 45 days of filing. The Director’s role is to acknowledge or return; the Director has no discretion to alter the terms or issue a conditional acknowledgement.
[13] Blancher-Smith has been a public servant for over 30 years including 9 years as District Manager for the Sudbury District in the Ministry of Natural Resources and, from May 2005 to 2012, as Director of the Development and Lands Branch, and Director of Mine Rehabilitation. She was in charge of the consultation process with WFN and actively participated in that process.
Duty to Consult and Accommodate
[14] WFN takes the position that Ontario delegated its duty to consult to Rubicon in respect of the PCP for the Phoenix Gold Project and Ontario failed to fulfill the duty to consult and accommodate. Ontario and Rubicon agree that Ontario had a duty to consult and accommodate the WFN, bearing in mind that Ontario may delegate procedural aspects to the Proponent. In order to arrive at a decision, it is necessary to review the process of consultation and accommodation in detail.
[15] When Rubicon acquired the option in 2002, the Project site was in the advanced mineral exploration stage. In March 2008, Rubicon discovered a significant zone of mineralization in an area known as the “F2 Gold System”, which led Rubicon to initiate development of the site. In this context, the Phoenix Gold Project involves new production from an existing underground mine shaft. Rubicon officials were aware that Ontario had a duty to consult and accommodate WFN, LSFN, and MNO and those same officials were aware that they would be expected to participate in procedural aspects of the consultation and accommodation. Based on s. 12(2) of the Mine Development and Closure under Part VII of the Act Regulation[^2] to which reference will be made below, Rubicon officials were aware that it also had to certify in its closure plan that it had carried out reasonable and good faith consultations with appropriate representatives of all Aboriginal peoples affected by the Project.
[16] According to Boyd, on November 20, 2008, the Ministry provided contact information so that Rubicon could begin consultations with WFN in respect of the Project. That same day Rubicon contacted the WFN band office and spoke with WFN Councillor Tom Moore. Rubicon explained that it was seeking a meeting to report on and review its activities in the Project area.
[17] On December 9, 2008, Rubicon’s President and CEO, David Adamson, wrote to Chief Cameron to introduce Rubicon to WFN and to inform WFN of the advanced underground exploration program that was expected to commence in the spring of 2009. In that letter Adamson acknowledged that WFN had traditional territory in the region and he was looking for advice. He also wrote that Rubicon was looking for guidance from Chief Cameron to establish a good working relationship with the Chief, the band council, and members of the communities. Adamson also confirmed in that letter that a meeting was scheduled for January 7, 2009 which was intended to include representatives of WFN, Rubicon, and Ontario.
[18] On January 7, 2009, representatives of Rubicon and Ontario attended a consultation meeting with WFN at Wabauskang. Rubicon representatives gave a powerpoint presentation introducing Rubicon and providing information on the advanced underground exploration program that was about to start.
[19] In order to pursue development, Rubicon was required to and, on December 24, 2008, did file with the Director a Notice of Project Status. On January 16, 2009, Rubicon submitted its Advanced Exploration Closure Plan to the Director.
[20] According to Blancher-Smith, upon receipt of Rubicon’s notice, the Ministry began its consultation process by completing the Consultation Screening Form, dated February 12, 2009. This is a four page form that includes information on the land status of the project area, area sensitivity, and impact of activity on protected rights. It is meant to be completed by staff in the context of the Project Screening Guide. The following information has been extracted from that form:
Table 1: Land Status of Project Area
Existence of Land Claims
No land claim on MAA list
Compatibility of existing affected Land Use with existing or asserted Treaty and Aboriginal Rights
Incompatible due to presence of historical mine infrastructure
Table 2: Area Sensitivity
Sensitivity of Area
Hunting
Low Comment: Subject land is within a developed area on an isolated peninsula. Extensive industrial activity and land alteration since ~1950
Trapping
Low Comment: Subject land is within a developed area on an isolated peninsula; Extensive industrial activity and land alteration since ~1950. DO WE KNOW WHO OWNS THE TRAPPING LICENCE FOR THIS AREA?
Fishing
Nil Comment: No anticipated effects on fisheries. Community has identified concerns related to drilling conducted from the ice in winter.
Gathering
Nil Comment: No anticipated effects; no documented cultural heritage sites; extensive industrial activity and land alteration since ~1950
Cultural/spiritual
Low Comment: No anticipated effects, no documented cultural heritage sites. Low rating due to distance from community; however, an archeological assessment should be completed by proponent prior to production.
Lands subject to land claims
Nil
Overall Score
Low
Table 3: Impact of Activity on Protected Rights
Hunting
Nil Comment: Site within Municipality of Red Lake, lands zoned as Hazard Lands and Natural Resources. Site tenure is fee simple patents. Intensive industrial activity and land disturbance since ~1950
Trapping
Nil Comment: Site within Municipality of Red Lake, lands zoned as Hazard Lands and Natural Resources. Site tenure is fee simple patents. Intensive industrial activity and land disturbance since ~1950
Fishing
Nil Comment: No anticipated effects on fisheries – No discharge of mine water into Red Lake as a result of the current project. Community has identified concerns related to drilling conducted from the ice in winter. The community has not raised any concerns with respect to the more problematic practice of drilling from a barge.
Gathering
Nil Comment: Site within Municipality of Red Lake, lands zoned as Hazard Lands and Natural Resources. Site tenure is fee simple patents. Intensive industrial activity and land disturbance since ~1950
Cultural/spiritual
Low Comment: Unknown at this time. Low rating due to distance from community; however, an archeological assessment should be completed by proponent prior to production decision
Lands subject to land claims
Nil Comment: not according to the constructive knowledge of the Crown.
Overall score
Low
[21] Based on those results and with reference to the Consultation Category Chart, which cross-references sensitivity and impact, the author of the form was required to assign one of four project categories: no consultation requirement; notification only; standard consultation; or enhanced consultation. Peter Hinz, the Mineral Development Coordinator at the Ministry who filled out the form, concluded that this Project was to be categorized as notification only. The form includes Hinz’s summary of the rationale for that project category, which was the pre-existing active exploration for gold and the consequential absence of traditional Aboriginal activities on the site for a significant period of time. He noted that the proposed advanced exploration project entails dewatering of the existing underground workings and underground exploration. He also noted that those activities would not have an impact on the environment of the site or surrounding area.
[22] Under “Recommended Focus of Consultation”, Hinz noted that MNDM staff had met and discussed the Project with WFN and communications would continue as required; that MNDM staff (Mike Grant) had met with LSFN, but discussions had not focused on this Project and communications would continue as required. He also noted that Rubicon was encouraged to continue dialogue with LSFN and WFN for the duration of the Project and that Rubicon had met with MNO whose members had no concerns.
[23] Ministry staff did not share this screening form or any of its contents with WFN.
[24] On February 27, 2009, the Director acknowledged the Advanced Exploration Closure Plan. This Director’s decision is not challenged in this application. According to Boyd, Rubicon has undertaken significant work pursuant to the Advanced Exploration Closure Plan.
[25] According to Blancher-Smith, consultations continued in 2009 and 2010 while Rubicon pursued its advanced exploration activities. She said that in addition to on-going consultations with respect to the Project, Rubicon began engaging in confidential communications with WFN and LSFN regarding a proposed Impact Benefits Agreement. She understood from Rubicon that it had an agreement in principle with LSFN to share in a proposed benefits agreement and that the two communities “stood together” and accordingly, Rubicon negotiated and consulted with WFN and LSFN together.
[26] According to Boyd, in August 2010, as Rubicon was contemplating the production phase, it resumed its efforts at consultation and outreach with WFN, MNO, and other First Nations groups. Rubicon created the position of Liaison Coordinator to help enhance Rubicon’s relationship with local First Nations. The Liaison Coordinator’s duties included creating a registry of WFN and LSFN businesses that could be of service to Rubicon; creating a registry of WFN and LSFN community members interested in employment with Rubicon; identifying and obtaining funding for negotiation costs, training, and community development; and identifying and participating in community outreach initiatives to encourage WFN and LSFN involvement with mining sector projects.
[27] According to Boyd, in September and October 2010, Rubicon made many attempts to schedule a meeting with Chief Cameron and finally a meeting was scheduled for November 3 – 5, 2010. Members of WFN and LSFN attended at the Project site for a tour of the surface and underground infrastructure and Rubicon gave a presentation on environmental procedures and other topics. Rubicon understood that WFN and LSFN were “standing as one”, which meant Rubicon was involved with one entity not two. In the consultation log maintained by Rubicon, the following note appears: “LSFN and WFN advised Rubicon that they had an agreement in principle between them to share in the proposed benefits agreement. Details not disclosed to Rubicon”. (Emphasis added.)
[28] According to Blancher-Smith, in a letter, dated February 8, 2011, Hinz advised Chief Cameron that MNDM had received a Notice of Project Status indicating that Rubicon intended to move from advanced exploration to production, which was a precursor to submitting a PCP. Hinz asked to meet with WFN to discuss the project proposal and to listen to the concerns of the community. He confirmed his understanding that Rubicon had had some discussions with WFN about the Project.
[29] According to Blancher-Smith, in a letter dated, February 9, 2011, Chief Cameron wrote to Hinz explaining that WFN had “many concerns” and stated the following:
Rubicon has had no discussions with Wabauskang First Nation except to present to us they will work with Wabauskang and LacSuel [sic] together only and we find this puts [sic] in a position that we are again an afterthought. We are a government and they are in our Territory. We have yet to request funding that we may have a meaningful dialogue with Rubicon as we were not given the opportunity to request this. Dialogue is a conversation between two parties and no that has not happened. We need to engage a lawyer and a mining consultant and we need to have resources to travel to Rubicon and this has to be done in a timely manner or the dialogue is not meaningful.
Yes, we need to meet. What is the expected outcome of the meeting? Will that meeting be considered informing and consenting? Will that be considered meaningful dialogue? We have many concerns that is true. Wabauskang First Nation takes exception to a person hearing our communities concerns unless there is a commitment that we will resolve these concerns in a good way before the Phoenix Project proceeds further.
[30] According to Blancher-Smith, on February 11, 2011, Hinz and Grant had a conference call with Boyd and Glenn Kumoi, the Vice President, General Counsel, and Corporate Secretary of Rubicon, to review the letter from Chief Cameron. In view of Chief Cameron’s comment about the lack of discussion with Rubicon, Hinz asked for details of Rubicon’s engagement and consultation up to that point. The note-to-file prepared by Hinz indicates the following:
• Glenn [Kumoi] and Darryl [Boyd] outlined Rubicon’s considerable efforts to engage and consult
• Rubicon has had WFN and LSFN Chief & Councils members on-site for a tour and discussions
• It has been stated to Rubicon that LSFN representatives are negotiating on WFN behalf and that the two communities are discussing (government to government) the percentage split of those benefits
• While Rubicon does not have a letter from WFN stating that LSFN is representing their interests, minutes from the last meeting between the company and two communities will bear this out
• Rubicon has engaged in protracted negotiations with LSFN on a Benefits Agreement, three offers have been tabled
• Rubicon is already providing payments to LSFN, contracts for services have been given to LSFN businesses
• Rubicon’s Aboriginal Liaison Officer, Carla Chisel (a LSFN member) has been in to WFN on several occasions
• Carla has helped WFN in applying for INAC for funding to assist negotiations
• Carla has also discussed economic development opportunities with WFN and collected resumes
• Based on their consultation record Rubicon Minerals feels confident that they have executed their duty to consult in a meaningful and diligent manner, they see no need to delay the submission of their Production Closure Plan. [Emphasis added.]
Hinz concluded his memo by indicating that it was anticipated that the Closure Plan would be delivered to MNDM Sudbury on Monday February 14, 2011.
[31] According to Blancher-Smith, in that conference call, Hinz had suggested that Rubicon delay submitting the initial PCP. The note-to-file does not specifically reflect that, although it is a reasonable inference from the second last bullet.
[32] According to Blancher-Smith, on February 11, 2011, Hinz advised her of the letter from Chief Cameron and the conference call with Rubicon. She deposed that Hinz had advised her that Rubicon would forward its consultation log; he would draft a response to Chief Cameron; and seek a meeting with WFN and LSFN.
[33] According to Blancher-Smith and Boyd, on February 17, 2011, Rubicon filed its initial PCP to the Ministry. According to Boyd, the scope of work associated with the Advanced Exploration Closure Plan was nearing an end and the initial PCP was viewed as a necessity within several months if the development was to continue without interruption caused by the approvals process. He said that Rubicon regarded the submission of the initial PCP as reasonable for these reasons:
(a) significant efforts and attempts to consult had been undertaken since 2008 with First Nations, including WFN – under the oversight of the Ministry;
(b) no specific concerns or impacts to Aboriginal or treaty rights had been raised by any First Nation or MNO regarding the on-going advanced exploration phase of the Project, whose activities were similar to those that would be conducted during the production phase of the Project since advanced exploration is generally production phase mining on a smaller scale;
(c) the production phase footprint, which he said was a modest expansion of the advanced exploration phase footprint, had been cleared of any archaeological values by a licensed professional archaeologist;
(d) no additional privatization of land would be required for the production phase of the Project;
(e) there would be only minor incremental environmental impacts associated with the production phase of the Project as compared to the impacts associated with the historic operation on the site and the advanced exploration phase of the Project.
[34] Boyd also said that in order to maximize production and confine most of the Project’s footprint to brownfield areas that had been “highly disturbed” from historical exploration that occurred before 2002, Rubicon sought to re-activate or re-habilitate existing mining infrastructure, including utilizing the existing shaft and the vent raise; upgrading the head frame, hoisting plant, and the office/service building at the mine site; and re-activating and raising the existing tailings facility. In addition Rubicon sought to build or add new mining infrastructure, including a modern gold mill with better, modern environmental protection controls; infrastructure to maximize the amount of tailings deposited underground and minimize the amount of tailings deposited on the surface, which he said is better from an environmental perspective; a best-in-class water treatment plant to treat and discharge surplus water to the environment; an on-site residence for employees and contractors; a ramp to access the mine workings; and improvements to the existing road corridor.
[35] According to Blancher-Smith, in a letter, dated February 17, 2011, Hinz sent to Chief Cameron a copy of the initial PCP and pointed out that within 45 days, the Director must acknowledge that the plan has been “filed” as written or if it does not sufficiently address all of the prescribed requirements, return it to the Proponent for revision and re-filing. He asked for comments prior to March 25, 2011.
[36] Boyd was not a recipient of Chief Cameron’s letter, dated February 9th,but was informed of the letter by Hinz on February 11th. Boyd said he expressed surprise because of the efforts he had made in September and October to arrange the meeting that ultimately happened in November. Boyd said that he had responded to Chief Cameron’s letter by letter, dated February 25, 2011, written to Hinz, in which Boyd provided details of the communications with WFN including the notes and presentation and minutes of the site visit and meetings in November 2010. This letter was not copied to WFN. Blancher-Smith confirmed receipt of the February 25th letter.
[37] In a letter, dated March 4, 2011, Hinz wrote to Chief Cameron apologizing because through administrative error the Ministry had sent a copy of the initial PCP by ordinary mail and he confirmed that a second copy had been delivered by Rubicon at his request. Hinz noted that he would be sending a copy of Chief Cameron’s February 9th letter to Rubicon. Hinz suggested that they have a discussion to address five questions including whether the consultation log submitted by Rubicon as part of the initial PCP was accurate; whether WFN and LSFN had negotiated a Co-operation Agreement and if so, whether one of the goals was to pursue a joint Income Benefits Agreement; whether WFN was satisfied with the level of communications with Rubicon and if not, what the Ministry could do to assist in improving the communications; and whether WFN was willing to work with the Ministry, LSFN, and Rubicon to develop a communications protocol to facilitate the Project moving forward. He also reiterated that the initial PCP review period ended March 25.
[38] The affidavit of Chief Cameron has over 50 exhibits. The 25th exhibit is the first written communication to which he refers, namely an email and a fax, dated March 8, 2011, to LSFN, WFN, and the Ministry in which Kumoi indicated that as a result of the meeting in November, 2010 Rubicon was to send proposals on a benefits agreement to Will Major; that Kumoi would be receiving instructions from both LSFN and WFN; and that that reflected his understanding that LSFN and WFN had been working together on the IBA with LSFN taking the lead. He noted that, as a result of a recent update, WFN had advised that it wished to have separate direct communications with Rubicon and he confirmed that Rubicon would review the initial PCP with each group at their convenience.
[39] Boyd said that as soon as WFN communicated its requirement for direct and separate consultation, Rubicon complied.
[40] According to Blancher-Smith, on March 21, 2011, Hinz met with Chief Cameron, five members of the Resource Council and two advisors from the Bimose Tribal Council at which time Chief Cameron informed Hinz that LSFN did not have authority to speak for WFN; that the WFN Council had terminated the co-operation agreement with LSFN; that WFN had different needs from LSFN; and that WFN had not had a face-to-face meeting alone with Rubicon to discuss the Project.
[41] According to Blancher-Smith, on March 22, 2011, Hinz had an informal meeting with Rubicon at which time he advised Rubicon of WFN’s concerns.
[42] According to Boyd, on March 25, 2011, Boyd and other Rubicon representatives attended a meeting at the Bimose Tribal offices where they met with five WFN representatives, including Chief Cameron, as well as two Bimose Tribal Council members (including Don Morrison). Boyd said he understood that the two Bimose Tribal Council members were authorized to represent WFN for the purpose of consultation and negotiations and that WFN had retained the Bimose Tribal Council as its Governance and Resource Management Advisor. The agenda for the meeting listed confirmation of communications protocol; Rubicon was to provide an overview of the Phoenix Gold Project and the approval process; and WFN was to describe its traditional and current use of the site area and how the Phoenix Gold Project would affect WFN interests. The agenda also indicated that the response date for the initial PCP was April 4, 2011; that Rubicon wanted to understand how the PCP would affect WFN interests; and that Rubicon was prepared to discuss the most recent proposal on the benefits agreement.
[43] There was no representative of the Ministry at the meeting on March 25, 2011. The minutes indicate that it was a “confidential meeting”. The list of next steps indicated that Rubicon would send an executive summary or powerpoint by March 29th; a list of possible consultants would be created, who could assist WFN to review the initial PCP; Rubicon would send the company’s Aboriginal policy to WFN and WFN would send a workplan and budget to Rubicon on April 7, 2011.
[44] The consultation log maintained by Rubicon includes this note: “This meeting was largely an introductory meeting. WFN confirmed they are independent of Lac Seul First Nation. The group reviewed Aboriginal and treaty rights, discussed the Phoenix Project at a high level and discussed the consultation path forward. The WFN team provided a take-away that provided an overview of the WFN consultation & accommodation protocol.”
[45] According to Blancher-Smith, in a letter, dated March 25, 2011, Chief Cameron (and Councillors Martine Petiquan and Jo-Anne Petiquan) responded to Hinz’s letter, dated February 17. They took the position that their interests, rights, and title had not been considered under the PCP and formally objected to the plan. They advised that WFN had not been consulted in any meaningful way and insisted their rights, title, and interests must be respected on a mutual basis, including their rights to meaningful consultation. Chief Cameron took the position that the activities and uses of resources contemplated under the PCP affected WFN’s Aboriginal and treaty rights, interest, and title including but not limited to the following rights:
• Liberty rights: including the freedom and security to pursue vocations and maintain social wealth (clothing, travel, shelter, food and water) in and throughout WFN’s traditional territories.
• Hunting and Gathering rights: the rights are to be protected in a manner throughout WFN territory that maintains WFN’s goals, objectives, and values; this includes sustainability from an anishinabe perspective throughout time.
• Sustainability rights: including the protection of ecologically and environmentally sensitive areas, but equally the maintenance of treaty lands that will sustain WFN culture, society, religions, and practices.
• Cultural rights: rights that reflect WFN First Nation’s relationship and sacred connection with the land and WFN’s ability to carry out ceremonies, ritual, beliefs, and customs; protect heritage sites; and access land to treaty lands and resources, a right to benefit from the use of resources in our territory. (Emphasis added.)
[46] Chief Cameron wrote that they were seeking a positive approach that would allow a decision to be made that fully respected existing or asserted Aboriginal and treaty land title rights and interests. He wrote that WFN envisioned a meaningful opportunity to participate that involved the following:
• Involvement in the creation of a consultation process appropriate to WFN.
• Independent assessment of all necessary information that will allow full expression of interest and concerns effectively.
• A method to achieve mutuality about the potential cumulative net effects on WFN rights.
• A forum in which the Crown consults in good faith with the intention to substantially address the concerns of WFN.
• A process that employs respect and mutuality in achieving mitigation and accommodation of WFN’s impacts.
• A right to appropriate funding so that WFN can achieve a fair, balanced, and mutual consultation process.
[47] Rubicon was not copied on that letter.
[48] According to Boyd, on March 30, 2011, he gave Ms. Petiquan a list of potential third party consultants who, at Rubicon’s expense, could assist WFN to conduct a review of the initial PCP as well as a copy of Rubicon’s Aboriginal policy.
[49] On March 31, 2011, Boyd and other Rubicon representatives met with WFN representatives and presented an in-depth powerpoint presentation on the Project.
[50] According to Boyd, following the meeting on March 31st, it became clear that WFN required additional time to consider the initial PCP and, in order to ensure meaningful consultation, Rubicon decided to withdraw the PCP and re-submit it once the WFN had an opportunity to engage a third party consultant.
[51] According to Blancher-Smith, on April 1, 2011 MNDM staff met with representatives of Rubicon to discuss the PCP. On Monday April 4, 2011, she (and others) met with Kumoi (and others) at which time, she expressed concerns about the adequacy of consultation. According to an email sent by Kumoi, dated April 8th, Rubicon decided at that time to withdraw the PCP because of illness in Chief Cameron’s family, which meant he would not be able to review and approve the two proposed conditions in the PCP. Since the legislation does not allow for an extension, the only option was to withdraw it.
[52] According to Blancher-Smith, in an email, dated April 5, 2011, Boyd confirmed to her that Rubicon was withdrawing the PCP and would re-submit in the near term.
[53] According to Boyd, in a fax, dated April 5, 2011, Terry Bursey, Regional Manager for Rubicon, advised Chief Cameron that Rubicon had decided to withdraw the initial PCP and that “the reason for withdrawal and planned re-submission later this month” was to allow additional time to consult with WFN. Bursey confirmed Rubicon’s commitment “to on-going, good faith consultation with WFN in order to understand and address concerns with possible impacts on aboriginal and treaty rights” including “mitigation, accommodation and where appropriate, compensation for confirmed impacts”. Bursey also pointed out that, if other sources of funding were not available, Rubicon would fund a review of the initial PCP by a mutually agreed third party to move the consultation process forward. This letter was not copied to the Director, but was provided to her on April 21st.
[54] According to Boyd, on April 8, 2011, seven members of WFN and one member of the Bimose Tribal Council met with Boyd and Bursey. The minutes indicate that Boyd read a letter, dated April 7, 2011, in which David Adamson expressed sympathy to Chief Cameron for the “recent emergency” and expressed his gratitude that WFN would continue to consider the PCP at “this difficult time”. The letter echoed the Bursey letter with respect to commitment to consultation on all stages of the Phoenix Gold Project.
[55] The minutes of that meeting indicate that Rubicon was still planning to re-submit the initial PCP and the minutes included next steps with respect to the refined work plan and budget. The minutes also specified that the next meeting was to be held on April 26. The agenda for the next meeting would include Rubicon’s request for agreement on section 14 of the initial PCP (referred to below).
[56] The consultation log maintained by Rubicon contains this note: “The group reviewed the consultation work plan and agreed to Phase 1. It was agreed that we would refine and re-visit Phase 2 after completion of Phase 1. Phase 1 includes a review of the closure plan and a gap analysis to facilitate the identification of potential impacts to aboriginal and treaty rights.”
[57] There was no representative of the Ministry at the meeting on April 8th.
[58] According to Blancher-Smith, on April 8, 2011, Kumoi sent an email to her and others thanking her for the meeting on April 4th; confirming his understanding that the Ministry would do its best to deal with the re-submitted plan within 30 days instead of the full 45 days; advising that a meeting was held that day with WFN; confirming a report would be provided by Boyd; confirming that Rubicon intended to re-submit the plan no later than April 11th; and that Hinz and Boyd would discuss the letter of transmittal.
[59] According to Blancher-Smith, on April 11 and 15, 2011, Hinz sent emails to WFN to request a meeting to discuss the PCP in advance of the re-submission.
[60] According to Boyd, in a letter, dated April 12, 2011, Bursey responded to Don Morrison’s email sent April 10, 2011 with respect to the revised workplan and budget and confirmed that Rubicon would pay $67,678 to the conclusion of Phase 1 of the budget.
[61] According to Blancher-Smith, in an email dated April 12, 2011, she responded to Kumoi’s email with respect to the re-submission of the PCP. She asked that an up-to-date consultation log be included in the PCP and wrote as follows:
As stated in our meeting last Monday, the goal of the consultation process is not necessarily to reach an agreement with Aboriginal communities but, rather, to ensure that the communities have been provided with an opportunity to be informed of, and understand the project, so that the communities can identify any potential adverse impacts on their Aboriginal and/or treaty rights, and your company can consider ways to reduce or avoid any such potential impacts. . .
I understand your company’s desire to move forward with this project as soon as possible, in part by re-submitting the Closure Plan at the earliest opportunity. The timing of when Rubicon Minerals re-submits its CP rests with the company, not MNDMF, although once the CP is submitted the 45 day period for my decision to accept the CP will begin. I trust you appreciate that our ministry must be satisfied that adequate consultation with Aboriginal communities has occurred in connection with the Phoenix Gold project, before we accept the Closure Plan as filed. [Emphasis added.]
[62] According to Blancher-Smith, in a letter, dated April 18, 2011, Hinz repeated to Chief Cameron his earlier requests to meet with WFN before the PCP was re-filed. In the letter he said the Ministry needed to have a discussion with WFN about what Aboriginal and treaty rights the community felt may be impacted as well as have an open discussion on the minerals industry in general. He noted that there was a meeting with Rubicon on April 26th and that “if WFN is comfortable with MNDM sitting in on this meeting” they would arrange to be present. Otherwise, Ministry staff would meet with Chief Cameron after the April 26th meeting. A copy of this letter was sent to Boyd.
[63] According to Blancher-Smith, on April 19, 2011, Chief Cameron responded by telephone to Hinz’s request to meet. She said that Chief Cameron advised that WFN did not want to meet with the Ministry yet and did not want Ministry staff at its upcoming meeting with Rubicon on April 26th. She also said that Chief Cameron had said WFN first needed to talk with Rubicon to understand the scope of the Project before WFN would be in a position to comment on potential impacts.
[64] According to Blancher-Smith, in an email, dated April 21, 2011, Boyd provided to the Director draft meeting notes from the March 25 and April 8th meetings and confirmed that Rubicon had agreed to fund the consultation process; observed that WFN’s interpretation of Aboriginal and treaty rights might be broader than what case law would support; confirmed that WFN had been very engaging and meetings were moving forward at a reasonable pace; advised of on-going negotiations with LSFN and information sharing with MNO; provided copies of the letters, dated April 5, to WFN, LSFN and MNO in which he had notified them of the withdrawal of the PCP.
[65] According to Boyd, in an email, dated April 24, 2011, Boyd circulated a proposed agenda for the April 26th meeting that included draft wording for section 14. In an email, dated April 25, Morrison noted that the purpose of the meeting was to discuss the third party study/gap analysis of the PCP and to develop terms of reference for the purpose of looking for a consultant to do the work.
[66] On April 26, 2011, six members of the WFN, two representatives from the Bimose Tribal Council and three representatives from Rubicon met. The minutes reflect the matters discussed including the terms of reference of the third party review and Rubicon’s request to consider the proposed section 14 of the PCP. The minutes indicate that WFN would provide feedback on the proposed section 14 at the next meeting scheduled for May 6, 2011, if not earlier; that neither WFN nor Rubicon could speak on behalf of the Ministry in its absence; that there was agreement that the Ministry would be invited to the May 6th meeting; that WFN would engage the consultant who would be present on May 6; and that Rubicon was still planning on re-submitting the initial PCP in the second quarter.
[67] Because of Chief Cameron’s request, there was no representative of the Ministry at the meeting on April 26, 2011.
[68] Rubicon did not refile the PCP in April.
[69] At paragraph 63 of his affidavit, Boyd referred to the significance of section 14 of the PCP, which he said contains “a central tenet of the Production Closure Plan and key commitment Rubicon has made to WFN to continue the consultation process through the life of the Phoenix Gold Project and to reasonably accommodate any mitigation measures proposed by WFN”. He also said that this key component of the plan would evolve in consultation with WFN.
[70] On May 4, 2011, Rubicon sent WFN a fax advising that it intended to submit the initial PCP on May 6, 2011 and repeated its commitment to consultation through which it could understand and address concerns with possible impacts on Aboriginal and treaty rights.
[71] On May 6, 2011, a meeting was held that included nine WFN members (including Chief Cameron), two Bimose Tribal Council members (including Morrison), three representatives of the Ministry (Hinz, Grant, and Blancher-Smith), and three representatives of Rubicon (Bursey, Boyd, and Gignac). Attached to the affidavits of Boyd and Blancher-Smith are copies of minutes of the meeting. The content appears to be the same although the formats differ. Attached to Chief Cameron’s affidavit are notes of the meeting. The meeting was significant and hence all of the documents will be reviewed.
[72] The minutes of the May 6th meeting indicate a lengthy discussion about Rubicon’s intention to re-submit the initial PCP that day. Morrison took the position that WFN would not support the initial PCP as consultation had not yet occurred. He said that WFN had engaged a third party reviewer who would work on the development of terms of references for the review, but Morrison could not estimate how long the review of the impacts would take. WFN expressed the concern that consultation could not be completed in the 45 day time frame. Blancher-Smith recommended that the initial PCP should not be submitted at that time based on what she was hearing and Boyd agreed with that recommendation. The minutes attribute the following to Blancher-Smith:
Cindy Blancher-Smith advised that the role of the crown is to try to help to mitigate defined “impacts” identified to aboriginal and treaty rights. The Ministry will not become involved in the economic agreement between the parties. This is not the business of the ministry. [Emphasis added.]
The minutes indicate that Grant said that sometimes not all “impacts” can be mitigated and that accommodation compensates for this. Blancher-Smith pointed out that when a PCP is submitted that does not end consultations, which will be on-going. She said the Ministry needed assurance from both parties that consultations were on-going and in good faith. Morrison said that the relationship is with the Crown and he asked that the Ministry be involved in the meetings. The minutes attribute the following to Blancher-Smith:
There is a duty to consult. That this project is Rubicon’s and that Rubicon needs to explain the project to the FN. The Ministry has no control over the company profiting. The Ministry needs to know that the FN understand the plan and that the company is addressing the FN concerns. The Ministry’s role is oversight that the consultation is ongoing that the FN understands the project and that the FN has an opportunity to respond to the project. That oversight fulfills the crown duty to consult. C Blancher-Smith advises that the MNDM&F would be happy to attend these meetings, and says that not all communities want the MNDM&F’s involvement in such meetings. [Emphasis added.]
[73] The minutes also record a comment by Blancher-Smith that Rubicon had voluntarily withdrawn the PCP and that that was rare and, she said, demonstrated Rubicon’s desire to make it work. Morrison said that they were shocked by the fax that indicated Rubicon intended to re-submit that day. Boyd said he welcomed the consultant’s comments regarding the Project and apologized if the wording of the draft of section 14 was considered offensive. Morrison said that WFN remained committed to the process. In response to a question about the timeline, Bursey explained the corporate objectives of Rubicon and said that if they did not get the PCP filed to allow work to continue, potential investors could walk away from the Project and there would be no Project. She noted that it was important to get the process moving so that all could benefit. Morrison noted at that point that WFN did not know what the impacts were. Blancher-Smith observed that the reviewer would provide that assistance.
[74] The minutes also include a comment by Boyd that Rubicon was appreciative of WFN sharing its consultation protocol and work plan and that the work plan was reasonable and was the right thing to do.
[75] As for next steps, the minutes indicate that Bimose staff would work with the consultant to develop the terms of reference, refine the budget, and the timelines; Bimose/WFN would provide the consultant with a digital copy of the PCP; and the next meeting should occur in about four weeks to discuss results of the review.
[76] According to Blancher-Smith, that same day WFN had retained a third party consultant to assist in its review of the PCP. The third party consultant was Nalaine Morin of ArrowBlade Consulting Services. Blancher-Smith did not think that the review could be completed in the 45 day time frame if the PCP was submitted that day. She deposed that, at that meeting, she suggested to Rubicon that the PCP not be submitted, and she said she discussed the Crown’s duty to consult.
[77] According to Chief Cameron, he brought to the May 6th meeting a copy of WFN’s draft Consultation and Accommodation Protocol, which he said laid out their minimum expectations when government consults with WFN about development in their territory to make sure that treaty rights are respected. He said that he had emphasized that WFN is small with limited internal capacity and would need outside experts. He said that he had explained that when a company applies for permits in their territory, that WFN expected to be part of Ontario’s approval process. He said that “this is part of our expectation for shared decision-making in our territory.”
[78] The protocol is a seven page document that includes: Purpose and Application; Legal Status; Context and General Principles to Guide Consultation and Accommodation; Trigger for Consultations; Four Step Consultation and Accommodation Process (Initial Contact, Determination of Consultation and Accommodation, Preparation of Workplan, Follow Workplan and Revise When Necessary); General. That document includes several points relevant to this case. First, accommodation is defined to generally include prevention and remediation of impacts as well as “provision of financial compensation and related benefits from the activity”. Second, WFN asserted that it would determine whether consultation and accommodation was required. Third, WFN would forward the draft workplan, but would negotiate aspects of it so that all parties arrived at a mutually agreeable workplan and budget. Fourth, WFN could decide to hold any aspect of consultation and accommodation process with the Crown, the Proponent, or both and expected the parties to respect such decisions if they were reasonable. Fifth, parties to consultation and accommodation processes may enter into confidentiality agreements. Last, if WFN required accommodation through negotiations with the Proponent for an agreement, the Crown is expected to, when requested by WFN, assist WFN to ensure that the Proponent engages in such negotiations pursuant to the portion of the workplan and budget that pertain to same and WFN expected that the Crown would not approve the activity unless and until agreement was reached between WFN and the Proponent.
[79] Chief Cameron provided a copy of seven pages of notes that were taken at that meeting. Those first two pages of the notes indicate that WFN met initially with MNDM and then the notes reflect the arrival of Rubicon. In his submissions, counsel for WFN emphasized the following points made in the notes: 45 days would not be enough time; whether the 45 days would be reset if new issues arose to which Ontario responded that the PCP must be withdrawn or Ontario would send it back; WFN said that the initial relationship is with the Crown and the relationship with Rubicon was secondary; the Director spoke of the duty to consult; WFN referred to its protocol that needed to be followed and the workplan that needed to be completed.
[80] The minutes are largely consistent with the handwritten notes of the meeting except that the notes contain more references to the Consultation and Accommodation Protocol.
[81] Rubicon did not re-submit the initial PCP on May 6th.
[82] According to Blancher-Smith, on May 9, she and Kumoi exchanged emails and agreed to a weekly call between the Ministry and Rubicon to review progress with WFN.
[83] According to Blancher-Smith, after receiving the Notice of Project Status in early February 2011, MNDM staff began the process of completing the Consultation Screening Form. This is the same format referred to above as was used in 2009 and was again completed by Hinz. There are minor amendments to the section on Land Status of the Project Area. In the section on Area Sensitivity, there is additional information, which is also referred to in the section on Impact of Activity on Protected Rights. As a result of the additional information, the overall score on Area Sensitivity was increased to medium. In the section on Impact of Activity on Protected Rights, hunting, trapping, and gathering remain at “nil” and the impact on cultural/spiritual remained at “low”. The impact on fishing was increased from “nil” to “medium”. With reference to trapping, the comment included “trapline held by member of the community of Lac Seul First Nation; limited opportunity to trap”. With reference to fishing the comment indicated “Possible effects on fisheries due to discharge of mine water into Red Lake as a result of mine production and related tailings management area”. With reference to cultural/spiritual, the comment was “No anticipated effects, no documented cultural heritage sites. Low rating due to distance from community: an archeological assessment completed by the proponent did not identify any values”.
[84] The overall project category was increased to 3 or Standard Consultation. In the summary of the rationale, the following appears:
The current proposed Mine Production project entails expanding underground workings, development of mine infrastructure including a tailings management area. The development of mine infrastructure related to the mill and underground facilities will not have an impact on the environment of the site or surrounding area. The development of a tailings management facility and resultant discharges into Red Lake may have an impact on the environment of the surrounding area.
[85] That Consultation Screening Form, dated May 30, 2011, was not shared with WFN.
[86] According to Blancher-Smith, on May 30th, Ministry staff participated in a conference call with Rubicon and received advice that the intention was to re-submit the closure plan that day. That did not happen.
[87] The next meeting was scheduled for May 31st, but on May 26, 2011 Chief Cameron cancelled it and said that Petiquan would be in contact with alternate dates.
[88] In an email, dated June 6, 2011, Boyd suggested to WFN that they forego the development of terms of reference and that WFN’s consultants commence their review of the initial PCP.
[89] In an email, dated June 7, 2011, Rubicon’s counsel, Sandra Gogal, sent an email to WFN’s counsel, Bruce McIvor, in which she enclosed the June 6th email and advised that Rubicon was available to assist the reviewer.
[90] According to Blancher-Smith, in a letter, dated June 8, she thanked Chief Cameron for the opportunity to meet on May 6th, and confirmed her understanding the Rubicon would pay for a third party review of the PCP and that Rubicon had accepted WFN’s preferred consultant. She said the following:
I encourage both you and Rubicon to keep working together to strengthen the relationship that will not only benefit Wabauskang but will also help Rubicon meet its critical June 30th deadline. Following the completion of the third-party review and presentation to the community, I would look for Wabauskang to communicate to MNDMF what specific impacts it sees the project having on Wabauskang’s Aboriginal and treaty rights.
I am offering you the assistance of Peter Hinz, whom you know, to work with Wabauskang to understand the scope of the project and regulatory process related to the filing of a closure plan. [Emphasis added.]
[91] That letter was not copied to Rubicon.
[92] According to Boyd, in an email, dated June 9, 2011, WFN’s counsel, McIvor, advised that WFN would not be able to confidently estimate either the timing or cost of the review of the PCP until they had discussed it with the reviewer.
[93] In an email, dated June 13, 2011, Gogal responded by expressing a concern about delays and confirming Rubicon’s willingness to assist the reviewer as well as repeating Rubicon’s commitment to the development of a meaningful, respectful, and lasting relationship with WFN. Gogal advised McIvor that Rubicon was available to work with Morin to help her complete her review by June 25th; that Boyd would meet with Morin to walk through the plan and arrange a site tour; that when Rubicon withdrew the PCP in April it was at the request of WFN to conduct a third party review; that Rubicon had not re-submitted in May to allow further time; that given the nature of the Project and the fact that it was within an existing brownfield site, three weeks was a “doable” time frame for Morin; that if Morin was unable to complete her review by June 25th, Rubicon would work through her concerns within the 45 day review period; and that Rubicon would like to re-submit the PCP on June 30th.
[94] According to Blancher-Smith, on June 24th, Hinz called Chief Cameron to follow up on the Director’s letter, dated June 8th. She said that they had discussed WFN’s concerns with the consultation process so far and whether WFN would be open to a parallel process, which meant that consultation regarding the PCP could be completed after it was submitted to the Ministry, rather than before. She said that Hinz had also reiterated her offer of his help.
[95] According to Blancher-Smith, on June 28, 2011, there was a meeting between staff of the Ministry, staff of the Minister, and Rubicon to discuss the plans to re-submit on June 30th. The Director attended that meeting and again suggested that Rubicon wait until the third party reviews were complete prior to re-submitting its closure plan.
[96] According to Boyd’s affidavit, on June 28th, McIvor and Gogal spoke, and McIvor confirmed that the consultant had started her review, but he was unable to confirm when she would be finished and that Chief Cameron would send to Rubicon a letter outlining the community’s initial concerns. Gogal confirmed Rubicon’s willingness to arrange a site visit for Morin. On the basis of the progress made by WFN in the review, Gogal confirmed that Rubicon would not be re-submitting the PCP on June 30th; that Rubicon would delay re-submission until July 15, 2011 to give the reviewer time to complete her review; and the parties could meet to discuss any issues or concerns identified.
[97] Rubicon did not re-submit the initial PCP on June 30th.
[98] According to both Boyd and Chief Cameron, in a letter, dated July 4, 2011 to Bursey, (with a copy to the Director), Chief Cameron wrote as follows:
Thank you for agreeing to fund our consultant’s review of the closure plan for the Phoenix mine. We’ve now had an opportunity to discuss the plan with our consultant and have a better idea of how the mine might affect us. We are very concerned about this mine project.
Rubicon did a traditional use study and an archaeological report. We can’t see how you can do these things and not talk to us. We are the ones who know our territory and how we use it. We have important information on this and are gathering more from the Elders this summer. This information should be considered.
The mine might have really serious effects on the water in our territory. We are concerned about poisons seeping into Red Lake and whether the tailings pond is safe. This could be really serious for our fish and our traditional plants.
We’re also concerned about the increased traffic the mine will create on the highway through our territory including how it might affect our moose and deer.
We’re concerned what the land will look like when the mine closes. The plan does not give any details about this. Also, we want to make sure there’s enough money on hand to put the land back to how it should be.
We’d like to have our consultant come out and look over the mine site with us. Our consultant can come out the last week of July. Please call me so we can make plans.
We would like our consultant to take a closer look at the plan and meet with us again. We’d also like to meet with you and government to talk about what can be done to fix this plan.
When we have a chance to review the plan more with our consultant and discuss it with you I expect we’ll have more concerns.
Wabauskang is very serious about making sure there’s no decision on this plan until we’ve had a chance to discuss our concerns with you and the government and find ways to deal with them. We understand your company wants to get things moving, but we have Treaty rights and it’s not our fault you didn’t start talking to us until a couple months ago. We understand you’ve been talking to Lac Seul for a long time.
We’re looking forward to hearing from you. [Emphasis added.]
[99] In a fax, dated July 8, 2011, Kumoi responded in detail to the three issues raised in the letter: the absence of WFN input in the traditional land use and archaeological study; concerns with respect to the Project’s effects on water and its impact on fish and traditional plants; and the impact of increased traffic. Kumoi followed up at least twice seeking an opportunity to discuss the issues with Chief Cameron.
[100] Rubicon did not re-submit the initial PCP on July 15th.
[101] According to Boyd, on July 26, 2011, WFN representatives and Morin attended at the Project for a site tour. On August 4, 2011, representatives of Rubicon met with members of the WFN and Morin to hear her preliminary comments on the initial PCP.
[102] On August 16, 2011, Sanderson J. released reasons for decision in Keewatin v. Minister of Natural Resources,[^3] in which she held that Ontario could not take up or authorize taking up in the Keewatin Lands where such taking up would significantly interfere with Treaty 3 harvesting rights.
[103] According to Blancher-Smith, on August 25, 2011, Hinz spoke with Boyd and obtained an update on the consultation efforts with WFN, including that Morin had completed the third party review and Rubicon reported progress at meetings where both Chief Cameron and the President of Rubicon were in attendance. Hinz reported to Blancher-Smith that Rubicon projected September 15th as the date for re-submission of the PCP. On August 31, 2011, Hinz advised Blancher-Smith that Rubicon and WFN had met to review the third party report.
[104] According to Boyd, in a letter, dated August 26, 2011, Adamson thanked Chief Cameron for the opportunity to meet on August 4th and confirmed their mutual commitment in continuing the consultation with WFN and the negotiation of a benefits agreement. He also confirmed (a) the agreement to keep confidential all information and documentation exchanged during the course of the discussions in connection with a benefits agreement and (b) the agreement that information exchanged in relation to the regulatory process may be disclosed to the Crown. He confirmed that Rubicon would pay $20,000 for a traditional use study and $20,000 for financial expertise/support.
[105] According to Boyd, on August 31, 2011, three Rubicon representatives (Boyd, Bursey, and Gignac) met with four WFN members (including Chief Cameron and Morrison) to discuss Morin’s draft report. Boyd addressed in some detail a number of issues raised by Morin including the importance of on-going dialogue between WFN and Rubicon; the costs associated with mine closure; the tailings management system and various options for containment and re-vegetation at closure; the End Land Use Designation of the Project on closure and the need for WFN input into any final plan; water quality and the plan for future monitoring before and after closure; and risk management. The minutes reflect discussion of those subjects.
[106] According to Boyd, in a letter, dated August 31, 2011, Chief Cameron wrote to Bursey to ensure that there was no confusion regarding WFN’s interests. He confirmed that the proposed site was within WFN’s territory and that WFN continued to exercise its rights as much as possible given the changes that had taken place. He expressed the belief that Bursey recognized the importance of the area and Bursey would continue to increase her understanding as discussions continued. He referred to his understanding that Rubicon was speaking with other First Nations groups with more members than WFN and emphasized that WFN’s rights were based on constitutional rights, not on population size. He expressed the belief that Bursey understood that and he closed with the comment that he looked forward to continuing a good relationship with Rubicon.
[107] According to Boyd, on September 8 and 9, 2011, three Rubicon representatives (Boyd, Bursey, and Gignac) met with four members of the WFN (including McIvor as counsel, and Morrison). The first day related to a benefits agreement. The second day focused on the Phoenix Gold Project. According to the minutes, a Project Committee was established of which the terms of reference would be taken from the environmental term sheet. The Committee would include three members from each of WFN and Rubicon and would meet quarterly at locations agreed upon with the funding for the Committee addressed in the annual budgets.
[108] Rubicon did not re-file the PCP on September 15, 2011.
[109] According to Boyd, on September 16, 2011, Bursey sent to Morrison a draft agenda for the meetings on September 17 and 18 along with a draft letter that Rubicon wanted to send to the Ministry of the Environment (“MOE”) with respect to its request for the Permit to Take Water. Bursey indicated she was sending it in draft because of the informal confidential agreement to have WFN pre-screen any correspondence to the Crown. According to Boyd, the letter was sent in September. There is no evidence whether it was approved by WFN.
[110] On September 17 and 18, 2011 Rubicon representatives met with WFN representatives, along with WFN’s counsel and a Bimose Tribal Council member. The draft agenda forwarded by Bursey included an update as to the third party review; comment on the letter to the MOE; the notice to LSFN of an overlapping claim; the financial term sheet; and if time permitted, the environmental term sheet and the general term sheet.
[111] Attached to his affidavit, Chief Cameron provided a copy of the final report by Morin, dated September 28, 2011. According to Blancher-Smith, in a conversation on October 6th, Boyd advised Hinz that WFN had provided their third party review report on September 29, 2011.
[112] According to Boyd, on October 3, 2011, Chief Cameron signed and returned Adamson’s August 26 letter indicating his acceptance of the agreements outlined above.
[113] According to Boyd, on October 4, 2011, a meeting was held that included Morrison, Chief Cameron and one other WFN member, McIvor, and six representatives of Rubicon (Boyd, Bursey, Gignac, Gogal, Dave Fischer (Finance) and Kumoi, some of whom joined by teleconference). The minutes indicate that WFN’s focus was mainly on the sharing of resources for the potential mine life estimated to be 13 years. McIvor made a presentation in which he described the three categories of the offer. Rubicon agreed to consider the offer and discuss it at the meeting scheduled for October 13th.
[114] According to Blancher-Smith, on October 6, 2011, Hinz spoke with Boyd and was advised that Rubicon would be meeting with WFN on October 14 to discuss the third party report and the mitigation/accommodation measures; that all concerns raised in the report were reasonable and valid; that Rubicon would include unique obligations in its PCP with respect to monitoring programs and mitigation measures in response to the concerns; that the obligations would be enforceable compliance obligations inserted in the closure plan; that both parties were committed to continuing to negotiate after re-submission of the PCP; that WFN had advised that it did not want community consultation sessions until an Impact Benefits Agreement was reached; and that Rubicon was planning on re-submitting its closure plan on October 17th.
[115] According to Boyd, on October 13 and 14, a meeting was held that included Morrison, Chief Cameron and three other WFN members, McIvor, and five representatives of Rubicon (Boyd, Bursey, Gignac, Gogal, and Fischer by teleconference). According to the agenda, October 13 was focused on the benefits agreement and draft environmental positions, while October 14 dealt with the PCP review, the environmental term sheet review of edits and outstanding items. According to the minutes of October 14th, Morin participated by teleconference and presented her Environmental Report. McIvor advised that it was an “on the record discussion”. According to Boyd, following Morin’s review, he provided comments aimed at explaining Rubicon’s various mitigation proposals and action items aimed at eliminating or minimizing the WFN areas of environmental concern. McIvor said that WFN would review Boyd’s feedback and suggested that there be another meeting in the near future to identify next steps. Boyd advised that he was updating the initial PCP in response to Morin’s report, and Bursey advised that the PCP would be re-submitted the week of October 17th. She also advised that she wanted to submit the consultation log after pre-screening by WFN. McIvor advised that WFN felt that the re-submission was premature and that if it was filed, WFN would oppose the plan. The next meeting was scheduled for October 27 and 28.
[116] According to Chief Cameron, at the October 14 meeting, Morin explained that her report was a “gap analysis”, designed to identify information gaps in the PCP and indicate how missing information would be collected and analyzed, and then brought up next steps including the need for further discussions on water quality, monitoring, and treatment. He said that they advised Rubicon that they had not yet had an opportunity to review the details of the report with Morin and that next steps should include that consultation and then joint decisions on how to proceed. He pointed out that one of the issues discussed was the preparation of a traditional use study for the site and the surrounding area, which would provide better understanding as to current uses and how treaty rights would be affected by the Project. He said that Rubicon pressured them for a definite schedule for completing the traditional land use study, but WFN representatives explained that they had already interviewed approximately 20 community members and still had 10 to 20 people who had not been interviewed. Chief Cameron also said that Rubicon acknowledged that WFN had raised serious concerns about the PCP, they shared the concerns, and they agreed the concerns needed to be addressed together. Rubicon repeatedly told WFN that consultation was on-going and that they intended to address the concerns.
[117] Chief Cameron said that at the end of the meeting Rubicon surprised WFN by announcing that they intended to submit the PCP the following week. He said that Rubicon representatives said that they had “maxed out on their schedule”; that they had to proceed with getting the PCP accepted; that they would incorporate what was necessary based on the concerns WFN had raised; and would address on-going consultations.
[118] On October 17, 2011, Rubicon submitted its PCP to the Director, which Boyd said had been revised to incorporate measures to address all of the concerns expressed by WFN as well as all of the recommended mitigation measures contained in the report from Morin. The covering letter accompanying the submission of the PCP said the following:
Rubicon has endeavoured to be proactive with respect to aboriginal consultation. Rubicon has collaborated and funded reviews of the Phoenix Project (as presented in this Closure Plan) on behalf of Lac Seul First Nation (“LSFN”) and Wabauskang First Nation (“WFN”) by independent consultants that were selected by each respective First Nation. Section 14 of the Closure Plan summarizes special provisions that have been integrated into the Project to address the concerns and comments received through these independent reviews. In addition, Rubicon has offered to collaborate and fund a review of the Project on behalf of the Metis Nation of Ontario as well, and has committed to amending the Closure Plan as necessary to reasonably address any concerns that arise from the review. Rubicon shall continue to consult with aboriginal communities under the guidance of MNDM&F and amend the Closure Plan as is necessary to reasonably mitigate impacts to aboriginal and treaty rights.
[119] The PCP is a document of almost 170 pages plus 23 appendices. It includes a section on “Consultation”, which references past consultation and Rubicon’s commitment to future consultation “under the guidance of MNDM&F”. It references the reviews that it had funded on behalf of both LSFN and WFN. It points out that section 14 of the PCP summarizes special provisions that have been integrated into the Project to address the concerns and comments received through these independent reviews. In the letter of transmittal, Rubicon’s President and CEO indicated that the company had prepared a progressive Project plan that would manage potential acid rock drainage and metal leaching issues; utilize real-time operational data to guide decision-making; incorporate robust environmental protection contingencies, utilize conservative design bases and conservative decision-making criteria and install a complete perimeter seepage collection system in addition to other seepage prevention measures; minimize water consumption and effluent discharge; commit to the implementation of a rigorous monitoring program that surpasses legislative standards in collaboration with the Aboriginal community and mitigate any identified impacts as is reasonable; provide physical and chemical stability and financial assurances for the close-out; and establish an appropriate time frame for Aboriginal communities to contribute to the re-vegetation plan.
[120] Every PCP requires certification by qualified professionals, ten of which are listed and identified. In addition, the President, CEO, and the Chief Financial Officer sign the “Certification by Proponent”, which certifies that:
(a) the attached Closure Plan complies in all respects with the Mining Act . . .
(b) the Proponent relied on qualified professionals . . .
(c) the cost estimates of the rehabilitation work are based on market value . . .
(d) the amount of financial assurance provided in the plan is adequate and sufficient …
(e) the Proponent has carried out reasonable and good faith consultations with appropriate representatives of all Aboriginal peoples affected by the project
(f) the PCP constitutes, full, true, and plain disclosure of the rehabilitation work currently required to restore the project site to its former use . . .
[121] Table 14-2 in the PCP is a Summary of Recommended Risk Management Measures from WFN and Responses from Rubicon. This Table contains the 33 issues raised by ArrowBlade Consulting Services and, adjacent to each issue, is the response and/or clarification from Rubicon along with the summary of measures to implement the recommendations. In the response column, many of the responses include a commitment by Rubicon to make reasonable efforts to take certain steps or to reasonably implement recommendations from WFN. Rubicon made a commitment to participate in the working group and in the Project Committee and to reasonably fund their meetings. In section 14.2 Rubicon articulated its commitment to on-going consultation with WFN.
[122] According to Boyd, on October 17, 2011, Bursey advised WFN by email that Rubicon had re-submitted the PCP and that she looked forward to the meeting on October 27 and 28.
[123] According to Boyd, Rubicon proceeded with the submission on October 17th because it had engaged in significant consultations with WFN over a lengthy period of time in respect of the initial PCP, WFN’s concerns had been accommodated and addressed in the final PCP; and Rubicon was facing significant economic pressures from the market to advance and continue development of the Project.
[124] According to Blancher-Smith, in a letter, dated October 17, 2011, Hinz advised Chief Cameron that the PCP had been filed, pointed out the 45 day review period, and asked for comments prior to November 21st.
[125] According to Boyd, on October 18, 2011, Gogal wrote to McIvor to advise that the PCP had been submitted and enclosed the submitted documents. She asked WFN to pre-screen the consultation log and a draft letter to be sent to the Ministry.
[126] On October 19, 2011, Rubicon issued a press release announcing a $55 million development and exploration program in the Phoenix Gold Project.
[127] Chief Cameron said that Rubicon had submitted the PCP against WFN’s objections and Rubicon’s decision caused considerable distress to the WFN community. In a letter, dated October 26, 2011, to Adamson, Chief Cameron expressed his surprise and disappointment about how Rubicon had handled the filing of the PCP:
When we met on August 8, 2011 you promised that your company would work with us in a respectful manner. Rubicon met with us on October 14, 2011 to discuss our concerns about the plan. They presented us with several vague commitments and then suddenly announced they were planning to file the plan the following week. It was filed on Monday, October 17, 2011 without any further discussion. That is not a respectful way to treat Wabauskang.
Rubicon agreed that all of our concerns are serious and need to be dealt with. Rubicon cannot decide on its own how to deal with them. We need to be part of the process. We have a long history of industry & government coming into our territory, telling us not to worry, that they will deal with our concerns later, and then not following through.
We’re still willing to work with Rubicon, but we’re not going to be taken lightly. Please inform your representatives to sit down with us to work out how to address our concerns. We expect you to withdraw the closure plan. Wabauskang’s concerns must be addressed before the government makes its decision.
[128] According to Blancher-Smith, in a letter to the Director, dated October 26, 2011, Chief Cameron expressed his concern as follows:
Rubicon has filed their closure plan for the Phoenix Mine. We are very concerned. There needs to be real consultation between Wabauskang and government before there’s a decision to let Rubicon develop the mine.
We’ve had a consultant review the draft closure plan. Their report shows that our concerns are serious and that we have to gather more information and work out how to deal with our concerns. Rubicon doesn’t disagree with anything in our consultant’s report. Our outstanding concerns need to be addressed before there’s a decision on the plan. While we are willing to continue to work with Rubicon, government is ultimately responsible.
We need to sit down with Ontario as soon as possible to discuss how we are going to deal with our concerns. The first thing we should discuss is what part Ontario has to play in consultation. Our neighbours, Grassy Narrows, recently won an important court case about Treaty 3. We should discuss how that case affects the Rubicon plan.
We understand Ontario has 45 days to decide on the closure plan. We’re concerned this doesn’t give us enough time to consult with government on the plan. Please contact me as soon as possible to set up a meeting. [Emphasis added.]
[129] According to Blancher-Smith and Chief Cameron, in a letter, dated October 27, 2011, Chief Cameron responded to Hinz’s October 17th letter. He indicated that he had already written to the Director. He was not sure what Hinz’s letter meant. He queried whether Ontario intended to consult with WFN; whether the Director had the ability to accommodate for the effect of the Project on WFN treaty rights; and if Ontario was intending to consult with WFN, whether the consultation would have to wrap up by November 21st.
[130] According to Boyd and Blancher-Smith, in a detailed letter, dated October 27, 2011, Adamson responded to Chief Cameron’s letter. He listed the dates and locations of all of the meetings since January 7, 2009; he reiterated his earlier statements that Rubicon was open and available to meet and to further consult with WFN; he referred to the extensive correspondence and disagreed that Rubicon had made only “vague commitments”; he asserted that Rubicon had actively taken on board key recommendations made by Morin beyond those required by law; he summarized the occasions on which Rubicon had given notice of its intention to resubmit the PCP but had delayed to allow for further consultation. Adamson wrote that when Rubicon decided to submit the PCP on October 17th, it was based on a number of factors including Chief Cameron’s commitment not to delay the project and Rubicon’s agreement to continue to consult and negotiate a benefits agreement. He confirmed his belief that Rubicon was doing a good job of addressing WFN’s concerns and his commitment to continue to work with WFN during the 45 day period and “indeed for the life of the Project”. He concluded by taking the position that it was not fair or reasonable to expect withdrawal of the PCP and asked that Chief Cameron re-consider his position. He noted that Rubicon had delayed the PCP to the point “where it can seriously affect our project development to which our future hopes of prosperity for all parties are pinned”. Adamson copied McIvor and Morrison. The letter did not indicate that it was sent to the Director.
[131] According to Blancher-Smith, on October 28th, she directed staff to schedule a meeting with WFN as soon as possible. Hinz told her that within days of receiving the PCP, he had approached WFN on two occasions to request a meeting, but WFN appeared to already have meetings scheduled with Rubicon and did not want to meet with the Ministry at the same time. Hinz was trying to set up a meeting with WFN for some time after November 14th as Chief Cameron would be away until then.
[132] According to Boyd, Blancher-Smith, and Chief Cameron, in a letter, dated October 31, 2011, Kumoi advised the Director that WFN had provided a copy of Chief Cameron’s October 26th letter and this was his response. He provided a copy of Adamson’s October 27th letter to Chief Cameron as well as a copy of Table 14-2 from the PCP. He reiterated the extent to which Rubicon had consulted with WFN. Amongst other things, he noted that the project timeline of the Phoenix Gold Project would be at risk if Rubicon did not receive approval on December 1st and hence, the PCP could not be withdrawn.
[133] According to Chief Cameron, between May 6, 2011 and December 2, 2011, WFN met with Rubicon for two purposes: to consult about the Project and to negotiate an Impact Benefits Agreement. Rubicon and WFN agreed that the IBA negotiations would be confidential. He said that Rubicon had provided funding for both those confidential negotiations and the “on the record” Project consultations.
[134] According to Chief Cameron, because Ontario had told WFN to talk to Rubicon about their concerns about the Project and because WFN was already meeting with Rubicon as part of the IBA negotiations, it became unclear which meetings were intended to be part of the consultation process. Chief Cameron said that they began to worry that Ontario and Rubicon would try to rely on IBA negotiation meetings as evidence of consultation and his fear was realized when Rubicon attached the consultation log to the PCP. As a result, emails were exchanged between McIvor and Gogal on November 2 and 3 about the confidentiality of some parts of the consultation log.
[135] According to Blancher-Smith, in a letter, dated November 8, 2011,[^4] she wrote to Chief Cameron responding to his October 27th letter to Hinz. She indicated she would welcome an opportunity to meet with WFN and to discuss their concerns related to the PCP as well as the Keewatin decision of Justice Sanderson. She wrote as follows:
Our Ministry is committed to ensuring that appropriate consultation and accommodation, where required, occurs in relation to this project. As you have noted, the Crown has the ultimate responsibility for ensuring appropriate consultation takes place with Aboriginal communities. The courts also have acknowledged the Crown’s ability to delegate aspects of the consultation process to industry proponents, who often are in the best position to describe their exploration plans and develop measures to prevent or diminish any potential adverse impacts to Aboriginal or treaty rights.
[136] According to Boyd and Chief Cameron, in a letter, dated November 9, 2011, Sherry Cameron (Resources Technician for WFN who had attended many of the meetings) wrote to Bursey on behalf of Chief Cameron to explain WFN’s objection to the filing of the PCP. The reasons included the following: Morin’s report identified serious outstanding concerns, risks, and gaps; the land use and occupancy study was needed; the commitments by Rubicon did not have details, but were mostly what Rubicon described as “reasonable”; WFN was not prepared to rely on Rubicon’s word; Rubicon referred to a Project Committee that did not yet exist; Rubicon was driven by economic concerns that compelled it to go into production; WFN expected Rubicon to withdraw the plan to allow time to work the issues out respectfully.
[137] According to Chief Cameron, WFN did not agree that Rubicon had addressed all of their concerns when it submitted the PCP. Furthermore, WFN thought that Ontario did not have the authority to accept the PCP without first determining if it would infringe treaty rights. According to Boyd and Chief Cameron, in a letter, dated November 16, 2011 to Blancher-Smith, McIvor commented on Kumoi’s October 31 letter and its reference to Keewatin. McIvor took the position that the trial decision in Keewatin was relevant to the Director’s decision to acknowledge receipt of the PCP. McIvor said that the Director’s first step should be to determine whether or not the PCP represents a prima facie infringement of WFN’s rights under Treaty 3. If it did constitute a prima facie infringement, then Ontario did not have jurisdiction to accept the plan. He suggested a meeting with WFN to discuss the potential adverse effects of the PCP so that the Director would be properly informed. The letter does not indicate that it was copied to Rubicon, but McIvor did send the letter to Gogal before sending it to the Director.
[138] According to Blancher-Smith, in a letter, dated November 16, 2011, (copied to the Director), Sherry Cameron again wrote to Bursey this time referring to the meeting on October 14th, summarizing her concerns, and indicating that WFN expected Rubicon to withdraw the PCP.
[139] According to Boyd, Blancher-Smith, and Chief Cameron, in a letter, dated November 17, 2011, to Chief Cameron and Sherry Cameron (copied to the Director and Hinz), Bursey responded in detail to Sherry’s November 16 letter. On November 20th, Bursey sent a copy of the letter to the Director and two other Ministry representatives.
[140] According to Boyd and Chief Cameron, in a letter, dated November 18, 2011, to the Director, Gogal responded to McIvor’s November 16 letter disagreeing with McIvor’s interpretation of Keewatin.
[141] According to Blancher-Smith, in an email, dated November 18, 2011, Hinz confirmed with Chief Cameron that a meeting was arranged for November 25th. He confirmed the Ministry attendees, which did not include the Director.
[142] According to Boyd, in an email, dated November 19, 2011 to Morrison, Chief Cameron, and others, Bursey confirmed the meeting on November 21st to discuss the Morin review and commented on the status of negotiations with respect to the benefits agreement.
[143] According to Boyd, on November 21, 2011, a meeting between Rubicon and WFN took place. According to Blancher-Smith, on that date Hinz spoke with Boyd who advised that in response to one of WFN’s key concerns, Rubicon had made a formal offer to WFN to hire an environmental technician who would work with Rubicon staff on environmental monitoring. Boyd also advised Hinz that negotiations on the Impact Benefits Agreement were on-going.
[144] According to Boyd, in an email, dated November 23, 2011, to Morrison and the WFN team, Bursey said the following:
As follow-up to discussions at our meeting held on November 21, 2011, please find attached written response as requested. This response provides further details and clarification to the previously submitted mitigation measures and commitments of Rubicon in regards to the concerns contained in section 3 of WFN’s third party review of Rubicon’s Closure Plan and Sherry Cameron’s letter dated November 16, 2011. For convenience, the specific sections of the Closure Plan have been referenced in regard to each commitment, concern and mitigation measure.
Part 2 of the memo (Appendix 1 which represents an edited copy of Appendix B of the report from ArrowBlade containing Rubicon’s responses) will follow shortly once formatted.
[145] The enclosures of almost 300 pages included a detailed response to the concerns raised, Best Management Practices Plan for Control of Fugitive Dust, the PCP, and six appendices.
[146] According to Blancher-Smith, in an email, dated November 23, 2011, Morrison reported to the Director that Chief Cameron was disappointed that she would not be in attendance at the “critical meeting” on November 25th. He provided a draft “Wabauskang First Nation Engagement Proposal with Ontario” that he wished to discuss at the meeting. In an email, dated November 23rd, the Director responded to Morrison and Chief Cameron. She raised a concern that her Ministry would not have time to consider the Engagement Proposal before November 25th and reiterated her understanding that the intent of the meeting was to discuss WFN’s perspective on the Phoenix Gold Project, the third party report, and Rubicon’s efforts to incorporate the consultant’s recommendations. She also listed eight points that she said demonstrated the significant progress between WFN and Rubicon in relation to the PCP.
[147] According to Chief Cameron, in order to facilitate Ontario engaging with WFN directly and consulting with them meaningfully, WFN prepared a draft Engagement Protocol for Ontario about the PCP. He said that it had been sent to Ontario on November 23rd so that it could be discussed at the meeting. This three page document is a shorter version of the Consultation and Accommodation Protocol that was provided at the May 6 meeting. It indicates that WFN and the Proponent had been unable to agree on required mitigation measures; that while the Crown can delegate procedural aspects, it remained responsible for consultation; that WFN was entitled to a comprehensive process that includes direct consultation and accommodation; that WFN had consistently sought meaningful and timely engagement with Ontario about the PCP; that the Protocol outlined a proposed two-track process for WFN’s engagement with Ontario; that WFN was committed to an expedited process and reasonable timelines, but expressed concerns with the 45 day review period and did not accept that the Crown’s constitutional obligation to consult could be limited or truncated due to an arbitrary provincial statutory timeline; that the Crown’s consultation obligations had to be fulfilled before any decisions were made; that promises to consult, mitigate, or accommodate in the future are insufficient; that WFN took the position that Ontario did not have jurisdiction to infringe treaty rights. That document called for a preliminary assessment of potential impacts of the Project and then a process and a budget for consultation and accommodation.
[148] According to Blancher-Smith and Chief Cameron, in a letter dated November 22nd, and faxed on November 24th, the Director responded to McIvor’s November 16th letter as follows:
The Ministry of Northern Development and Mines (MNDM) is mindful of the Keewatin [trial] decision and is committed to meeting its constitutional and other legal obligations. MNDM staff have been actively engaged with Wabauskang First Nation (WFN) and the proponent regarding this project. My staff are presently assessing the Closure Plan and Rubicon’s record of engagement with WFN and other potentially affected Aboriginal communities, including any concerns those communities have raised regarding potential impacts on their Aboriginal and treaty rights, and the company’s plans to address those concerns.
As has been communicated to WFN on several occasions, we continue to be available to meet with WFN to discuss the project. I understand that my staff are in the process of confirming a meeting with WFN and their advisors scheduled for Friday November 25th in Kenora, Ontario.
[149] According to Chief Cameron, WFN wanted to meet with Ontario and had scheduled a meeting on November 14th, which was rescheduled to accommodate a meeting with Rubicon that Rubicon cancelled. He said that they were unable to meet until November 25th.
[150] According to Chief Cameron, at the meeting on November 25th, Hinz reiterated what the Director had said in the November 23rd letter. He confirmed that Ontario would not discuss the draft Engagement Protocol and the issues raised in it and that the purpose of the meeting was to find out WFN’s outstanding concerns regarding how Rubicon had consulted with WFN. Chief Cameron said that they tried to make clear to Ontario that WFN had significant unresolved concerns about impacts extending beyond the immediate mine site and that a wider assessment of impacts of the area had not been done yet. He raised the concern about threats of poison from the Project that could never be completely mitigated. He pointed out that they had not finished the traditional use study [“TUS”] that would provide important information about how treaty rights could be impacted. He said that WFN was very worried that Ontario was about to make a decision that could lead to a mine operating in their territory for decades and threatening the fish and wildlife without even having a clear understanding of the impacts on their rights. He said they told Ontario that Rubicon had failed to address their concerns and that its response had been to make vague commitments to make “reasonable efforts” to address their concerns later. WFN also said that it was not right for Rubicon to rush to submit the PCP when it could still continue to work under its existing exploration plan. He said it looked to WFN as if Rubicon was rushing to have the PCP accepted in order to please its shareholders.
[151] In his affidavit, Chief Cameron said that it was obvious that if Ontario decided that Rubicon had consulted with WFN properly, Ontario would approve the PCP regardless of the outstanding issues WFN wanted to discuss directly with Ontario.
[152] According to Blancher-Smith, the meeting on November 25th included ten community members, including Chief Cameron, Morrison, and several Ministry staff. She said that Stephen DeVos, Manager of Mineral Exploration and Development with the Ministry, reported to her that WFN again expressed their concerns with the Project and that the consultation process was still not complete. WFN said they needed more time to consider the mitigation measures that had been incorporated into the PCP. Blancher-Smith also said that after the meeting, DeVos had contacted Rubicon and advised that in deciding whether to acknowledge receipt of the PCP, the Ministry would consider whether WFN understood the mitigation measures proposed by Rubicon in the PCP; whether WFN had provided feedback with respect to those mitigation measures; and whether any feedback provided by WFN had been considered by Rubicon.
[153] According to Boyd, on November 25th, Rubicon representatives held a conference call with WFN, McIvor, and Morin in which McIvor advised that WFN had not had a chance to review the information concerning Rubicon’s mitigation measures sent on November 23rd. According to Boyd, while there was some discretion regarding the implementation of each recommendation from Morin, Rubicon agreed to implement each one and suggested a defensible implementation strategy, which was ultimately included in the amended PCP in section 14.2. McIvor reiterated WFN’s objection to the filing of the amended PCP and confirmed WFN’s position that it should be withdrawn.
[154] According to Blancher-Smith and Chief Cameron, in a letter dated November 28 and received by the Director on November 28th (and copied to the Minister of Aboriginal Affairs), [^5] Chief Cameron expressed his disappointment that she and her staff had refused to discuss the draft engagement process. He referenced the “Consultation and Accommodation Protocol” given to her at the meeting on May 6th. He outlined his concerns about the Ministry’s responsiveness; expressed the opinion that Rubicon did not need the PCP at that time; and that it was questionable whether Ontario had jurisdiction to deal with it. He observed that it looked like the Director had already made up her mind and had accepted what Rubicon told her without speaking to WFN first. He pointed out that the consultation log includes “a whole bunch of meetings we’ve had with them to try to negotiate an IBA which has gone next to nowhere”. He said that the environmental impacts were serious. He urged her to read their consultant’s report. He pointed out that this was not just about the mine site on the peninsula, but that the Project involved a much larger area. He said that there was a serious impact on their treaty rights and well-being that could not be mitigated. He also made the following comments:
Also, it’s not just about environmental impacts. We have Treaty rights. The Treaty is a solemn agreement between our people and Canada. It needs to be respected. As part of the Treaty we are supposed to share in resources and benefits when our lands are being used by other people. We need to have this discussion before there’s any decision to allow the mine to go ahead. You can’t just ignore us and tell us we can only talk about environmental impacts.
We met with your representatives last Friday and limited our discussions as you said we had to. But that’s not the end of it. We need real consultation and accommodation talks with government. Please take our draft engagement process seriously. Look it over and let us know when we can meet and begin to work together to get this done right and with respect. And please tell Rubicon to withdraw the plan. We’ll be very disappointed if you ignore us and go ahead and approve it this week. [Emphasis added.]
[155] According to Chief Cameron, in a letter, dated November 28, 2011, he wrote to the federal Minister of Aboriginal Affairs and Northern Development advising that the Director had refused to discuss important issues with WFN and asserting that she seemed to have already made up her mind to approve the PCP. Having signed the Treaty with Canada, he insisted that the Minister “do the right thing and make sure the Treaty is respected”. The Director was not copied on this letter but it was provided to her.
[156] According to Boyd and Blancher-Smith, in a 12 page letter, dated November 29, 2011, to the Director (copied to Chief Cameron, Morrison, and McIvor), Boyd began with the following general points that the Director should consider:
The assessment by the Crown as to the adequacy of consultation must take into consideration the fact that the land is private as it was patented prior [to] acquisition by Rubicon;
That there has been no specific tangible evidence of current land use by WFN, or any other Aboriginal community in the Project area (Project area is defined as McFinley peninsula except for the 60 metre shoreline buffer) provided to Rubicon;
That there are minimal impacts to the environment as further explained below, all of which have been reasonably and adequately mitigated and accommodated;
That Rubicon has funded and WFN has reviewed the Closure Plan over a reasonable period of time to identify any impacts on their traditional and current land use of the Project area and any impacts so identified have been adequately and reasonably addressed in the proposed mitigation measures which form part of the legal obligations of Rubicon set out in the Closure Plan; and
Lastly, Rubicon has committed to fund and engage in on-going consultation for the life of the Project including a process for the advance review of any permits required in the future.
[157] In that letter Boyd explained in detail Rubicon’s position in response to what DeVos had reported following the meeting on November 25th.
[158] According to Blancher-Smith, in an email, dated December 1, 2011, Kumoi provided the Director with his response to WFN’s November 28th letter.
[159] According to Boyd, in a fax, dated December 1, 2011, Boyd made the following commitments to Chief Cameron: to delay “breaking new ground” and to delay construction activities on “new land” until a traditional use and occupancy study was complete or until June 30, 2012 whichever was earlier; to pay $20,000 to fund the traditional use and occupancy study; to provide safe access to the Project site in order to conduct the traditional use and occupancy study; to engage in on-going and meaningful consultation on all land-based exploration activities outside of the McFinley peninsula and within the Phoenix Project site even though such a commitment was not required under the Mining Act. A copy of that letter was sent to the Director.
[160] According to Boyd and Blancher-Smith, in a four page letter, dated December 1, 2011, to the Director, (copied to the Minister), Chief Cameron expressed his concern about her handling of the PCP. He was critical that Ministry staff would not discuss the WFN draft engagement process. He noted that Ontario could not approve the PCP because the Treaty was with Canada and that if the Director did have jurisdiction to approve the mine there were important things to be discussed with Ontario, including revenue-sharing and shared decision-making, and the effects on treaty rights that could not be dealt with between WFN and Rubicon such as the concern that the mine would lead to more poisons in Red Lake. He noted the need to review the 12 page letter sent by Rubicon but insisted that they had not had time to explain their side of the story because “everything was being rushed to suit the company’s timeline”. He pointed out that WFN was a small First Nation that did not have experts and consultants “sitting around waiting to review these things”. He noted that the mine site was first developed in the 1950s but asked rhetorically what the WFN could have done about it because no one would have listened to them. He pointed out that at that time, they could not vote and that the only reason anyone was paying attention now was because the courts said they have to. He agreed that WFN had not provided evidence of their use of the peninsula, but they had not had a chance to finish the land use and occupancy study. He disagreed that the impacts on the environment would be minimal. He expressed their lack of confidence in Rubicon’s promises for future consultation. He noted that the consultant’s report was never meant to be the end of the story, just “the first step”. He insisted that the PCP would lead to a lot more than impacts on their treaty rights beyond the McFinley peninsula because the Phoenix Project would encourage development in a larger area and they had not had a chance to figure out those impacts. The letter concluded as follows:
Government has to step up and deal with our concerns, not just decide whether Rubicon has done enough. We’re disappointed you don’t seem to have taken your responsibilities to us seriously. We have constitutionally protected rights. That should mean something.
This whole way of dealing with our concerns doesn’t seem right. We tell them to your people, they repeat them, in different words, to Rubicon, and then Rubicon writes you a letter? It looks to us like your [sic] just making a decision on Rubicon’s consultation and not doing any consultation yourself. We don’t understand what’s going on here. Aren’t you supposed to be consulting with us yourself? What about the things we disagree with Rubicon about? What about the things Rubicon’s not responsible for?
We expect you’ll ignore us and just give the company what it wants. But that won’t keep us down. We’ll keep on trying to get someone to listen to us. This confirms for us that we can’t get a fair process with Ontario and that our ancestors were very wise when they made Treaty with Canada, not the province. We’ll take our fight to Canada. Hopefully they aren’t as close with these mining companies as Ontario is.
[161] According to Boyd and Blancher-Smith, in a letter, dated December 2, 2011, forwarded by email from Gogal to McIvor, Boyd responded to correspondence from Morin about data gaps in financial assurance, end land use designation, water quality, re-vegetation; land use activities after closure; development rock; TMF cover (i.e. rehabilitation required by the tailings management facility); and heritage. Boyd repeated the commitment to delay construction activities on new land until June 30, 2012 or completion of the traditional use and occupancy study, whichever was earlier.
[162] Rubicon and WFN did not agree on an Impact Benefits Agreement before December 2nd.[^6]
Decision of the Director, dated December 2, 2011, to acknowledge receipt of the PCP
[163] The Director’s decision is contained in a letter, dated December 2, 2011, to Adamson, which provides in part as follows:
I acknowledge receipt of the certified Rubicon Minerals Corporation – Phoenix Project Closure Plan dated October 18, 2011 for Mine Production as per 141.(3)(a) for Mine Production of the Mining Act, R.S.O. 1990, Chapter M14. As of the date of this written acknowledgement, the plan is considered filed and you must now comply with the Closure Plan. This includes supplemental information provided by Rubicon in electronic correspondence dated December 1, 2011. The supplemental information includes requirements for ongoing consultation with area First Nations and Aboriginal communities and a commitment to delay construction activities on undisturbed land until Wabauskang First Nation has completed a Land Use Occupancy Study, or June 30, 2012, whichever happens earlier.
I acknowledge your company’s efforts to engage and consult with First Nations and Aboriginal communities whose rights and interests are potentially affected by this project, as reflected in your Closure Plan, in more recent updates received from your staff, and in Rubicon’s support for third-party reviews of the Closure Plan by consultants retained by both Lac Seul First Nation and Wabauskang First Nation. MNDM has carefully considered the Closure Plan and all related information, including any potential impacts to the Aboriginal and treaty rights of the local First Nations and Aboriginal communities. I confirm that Rubicon has made commitments to address any outstanding concerns; and that any issues that require modification to the Closure Plan will be addressed in a Closure Plan amendment, as appropriate. I also confirm Rubicon’s commitment to continuing meaningful engagement and consultation with First Nations and Aboriginal communities, where required, consistent with the ongoing nature of our Ministry’s consultation obligations.
Please be advised that it is your responsibility to notify me (Director of Mine Rehabilitation) regarding: commencement of closure, any change in the stage of closure reached, planned expansion or alteration of the project, change in ownership or occupancy, management or control of the project, or if any other material change has occurred that could reasonably be expected to have a material effect on the adequacy of the Closure Plan or its amendments, pursuant to Section 144 of the Mining Act, R.S.O. 1990, Chapter M14.
The filing of this Closure Plan does not relieve the company from statutory obligations under other legislation, or contractual obligations under agreements the company may have entered into.
We wish you success with the operation and rehabilitation of the Phoenix Mine.
[164] A copy of that letter was sent to Chief Cameron and others.
[165] In her affidavit, the Director said that she had been actively involved in the consultation process and was aware of the efforts that had been made by Rubicon and the Ministry to consult with WFN. In reaching her decision, she had reviewed and considered the PCP (Exhibit E); Rubicon’s consultation logs (Exhibit UU), the Ministry’s consultation log (Exhibit VV), applicable legislation and regulations; the third party review report (Exhibit WW) as well as further communications from WFN, Rubicon, and the consultant; and documents provided to her by Ministry staff as a result of their review of the PCP, including a spreadsheet itemizing WFN’s concerns as provided by the third party consultant (Exhibit XX) and a document prepared by Rubicon detailing its responses to WFN’s concerns (Exhibit YY).
[166] The Director also said that on December 2, 2011, she attempted to contact Chief Cameron to advise him of her decision. She sent him a copy of the letter to Adamson acknowledging receipt of the PCP.
[167] According to Boyd, throughout the consultation process with WFN, Rubicon kept the Ministry informed of consultation steps that were undertaken. Representatives of the Ontario government attended several of the meetings between Rubicon and WFN. On several occasions Rubicon requested that representatives of the Ontario government attend meetings, but WFN objected. Out of respect for WFN’s wishes, on these occasions Rubicon did not press the issue and proceeded to meet with WFN without members of the Ontario government being present.
[168] Boyd also deposed that the PCP does not indicate material off-site environmental impacts from the Project; the PCP has a number of changes from the initial PCP, which were prompted by Morin’s report and were detailed in a chart; the PCP includes Section 14.2.1 headed “Commitment to On-Going Consultation with Wabauskang First Nation”; WFN had not identified any impacts on their Aboriginal or treaty rights flowing from the PCP; and Rubicon’s own assessment was that no steps taken under the PCP would have any impact on WFN’s Aboriginal or treaty rights.
Events after the December 2, 2011 Decision of the Director
[169] According to Boyd and Chief Cameron, in a letter, dated December 2, 2011, to Chief Cameron, Adamson confirmed that the PCP had been approved by the MNDM. He also confirmed that Rubicon would continue good faith consultations with WFN to ensure that their concerns were listened to and addressed, where appropriate. He indicated that Rubicon remained committed to discussing a mutually beneficial benefits agreement as a matter of priority. He offered to meet the following week.
[170] On December 7, 2011, on motion of the Minister of Natural Resources, the Court of Appeal issued an order staying the Keewatin judgment of Sanderson J., dated August 16, 2011, pending the determination of the appeal. In an endorsement, dated July 3, 2012, the Court of Appeal granted intervenor status to, among others, Chief Cameron on his own behalf and on behalf of all other members of WFN.[^7]
[171] According to Blancher-Smith, the Ministry has remained in contact with Rubicon to ensure that it is adhering to commitments made to Aboriginal communities, including WFN in accordance with the PCP. She noted that the commitments made by Rubicon in the PCP will become operative once the mine is to be closed. At that time, the Ministry will be monitoring Rubicon’s efforts to ensure that the accommodation measures incorporated in the PCP are implemented.
[172] According to Boyd, Rubicon has continued to engage in consultations and discussions with WFN in an effort to resolve issues, none of which relate to any potential impact on the ability of WFN or its members to exercise harvesting activities in the Project area. Rubicon suggested mediation and arranged at its expense for mediation in early December 2012.
[173] According to Chief Cameron, members of the WFN were very disappointed and frustrated with the Director having accepted the PCP. He continued to press his concerns by writing to the Director in a letter dated February 9, 2012 and by meeting with the Director on April 3, 2012. The Director offered to facilitate talks between Rubicon and WFN, but Chief Cameron said she refused to talk about the possibility of sharing the benefits from the mine.
[174] Chief Cameron said that before the PCP was acknowledged, both Ontario and Rubicon confirmed they would be continuing opportunities for consultation and accommodation and that Rubicon had said it was still willing to negotiate an IBA and Exploration Agreement. He said that from WFN’s perspective, Rubicon has its PCP and has little incentive to seriously negotiate with WFN about an IBA. Since such communications and events occurred after the December 2nd decision to acknowledge the PCP, they need not be further addressed.
Status of the Phoenix Gold Project
[175] According to Boyd, since receiving the acknowledgement of the amended PCP, Rubicon has continued to develop the Project. Rubicon has commenced construction of additional mining infrastructure including a gold mill; construction of on-site accommodations; establishment of an on-site quarry to provide construction rock; construction on an on-site tailings management facility; and improvement to the access road. The work undertaken by Rubicon in reliance on the PCP includes the expenditure of approximately $161 million since December 2011. At the time of Boyd’s affidavit in November 2013, Rubicon had approximately 122 people working on site including 75 contractors, many of whom came from local First Nations communities. As of September 30, 2013, Rubicon anticipated further expenditures of $218 million, which means that the total project would be $379 million and work on the site was about 42% complete. Production was expected to commence in the first quarter of 2015. Boyd deposed that if work on the Project were stopped, even temporarily, there would be drastic implications for Rubicon and the people working on the site would be thrown out of jobs. Rubicon could potentially be in breach of contacts and some contractors might not return to work at the site because of the uncertainty. Reluctance on the part of the skilled workforce to return to the Project following a work stoppage could prove to be very harmful, such as causing material delays, capital cost overruns, and the risk of missing the opportunity to start production during the current period of high gold prices.
The Judicial Review Application
[176] This application was issued on December 20, 2012; more than a year after the Director issued the decision to acknowledge the PCP.
[177] On March 4, 2013, Molloy J. made a consent order that extended the time for WFN to perfect the application to 90 days after the Court of Appeal issued its reasons for decision in Keewatin. On March 18, 2013, the Court of Appeal released reasons for decision allowing the appeal in Keewatin.[^8] On July 26, 2013, Lederer J. made an order that extended the time for WFN to perfect the application to 45 days after the earlier of the date on which the Supreme Court of Canada issued its decision on the application for leave to appeal in Keewatin and the date on which the parties conclude mediation scheduled for the week of November 25, 2013. On September 19, 2013, the Supreme Court granted leave to appeal and granted leave to Chief Cameron on his own behalf and on behalf of all other members of WFN to intervene in the appeal of Keewatin.[^9]
The Issues
[178] According to the Applicant, this case raises two issues of fundamental importance. The first is whether Ontario can infringe treaty rights; in other words, whether Ontario has exclusive regulatory jurisdiction to make the decision or whether the federal government must also be involved. If Ontario does have exclusive regulatory jurisdiction, the issue is what limits exist on the Crown’s right to delegate the duty to consult to third parties. If Ontario is found to have infringed treaty rights or to have failed to fulfill its duty to consult and accommodate, then the question is the appropriate remedy.
[179] According to counsel for Ontario and counsel for Rubicon, Ontario does have exclusive regulatory jurisdiction; Ontario did fulfill the duty on the Crown to consult and accommodate the WFN; and Ontario did not improperly delegate its duty to consult.
[180] At the outset of submissions, the court asked counsel to address whether there was any potential impact on this application by reason of the upcoming May 15th hearing before the Supreme Court of Canada in Keewatin. In his factum, it appeared that counsel for the Applicant suggested that the entire matter be deferred. In submissions, counsel for the Applicant took the position that the court should defer the jurisdiction issue until after the Supreme Court of Canada released reasons for decision in Keewatin, but should deal with the duty to consult and improper delegation. Both counsel for Rubicon and counsel for Ontario were opposed to deferral of the jurisdiction issue.
[181] At the conclusion of submissions on that point, the court made a ruling that the issue as to whether Ontario had jurisdiction had been determined by the Court of Appeal, and this court would not delay submissions on the issue until the Supreme Court of Canada released its decision. The Supreme Court of Canada dismissed the appeal in reasons released on July 11, 2014.[^10]
[182] The issue before this court arose from the allegation that the Crown had breached its duty to consult and accommodate in three ways: by improper delegation to Rubicon of the duty to consult and accommodate; by its failure to assess the Applicant’s credible claim; and by its failure to share its initial assessment of the Applicant’s claim with the Applicant. Counsel for the Applicant took the position that the key issue was improper delegation. Indeed, he asserted that this was not an adequacy of consultation case.
[183] In submissions, each counsel referred to the extensive documentation to address both the adequacy of the consultation and whether Ontario had unlawfully delegated to Rubicon more than procedural aspects of its duty to consult and accommodate. I am satisfied that this Court cannot deal with unlawful delegation in a vacuum. Rather, in order to address the unlawful delegation, I must consider the entire process and content of the negotiations and communications to ascertain whether Ontario fulfilled its duty to consult and accommodate.
[184] Before embarking on the legal analysis, it is important to keep in mind the following evidence of Chief Cameron, at paras. 95-98 of his affidavit:
We do not think it was right for Ontario to refuse to discuss the possibility of shared decision-making about the Project with us. We also do not understand why Ontario refused to talk to us about shared benefits. Our rights to share in the decisions and benefits of the resources that are extracted from our territory are an important part of how we understand our treaty, and the Project has the potential to affect our ability to exercise these rights on a permanent basis.
Ontario told us that we had to rely on Rubicon to address our concerns about the Project, but we do not see how Rubicon could consult with us or accommodate infringements of our treaty rights on the issues of shared decision-making and revenue-sharing between Wabauskang and the Crown. Our treaty is not with Rubicon. Rubicon does not have the ability to make a decision about how Ontario can accommodate our treaty rights through shared decision-making or revenue-sharing. To us, it seemed that Ontario told us to talk to Rubicon so that it did not have to consult with us about these issues.
Ontario’s reliance on Rubicon to fulfill its duty to consult with us was especially frustrating because we know that at the end of the day Rubicon is not legally obligated to carry out consultations. Even when the Project will have a serious impact on our treaty rights, it is open to Rubicon to tell us that it does not need to consult anymore and that we should talk to government instead.
During the meetings we had with Rubicon between May and November 2011, Rubicon repeatedly told us that it had no legal responsibility to address all our concerns, including our concerns about our right to share in benefits from the Project. Instead, Rubicon was focused on mitigating the specific effects of the Project identified by our consultant. For us, Rubicon’s response to these concerns was to make vague commitments to make best efforts in the future. More importantly, Rubicon did not and either would not or could not address our more fundamental concerns regarding a sharing of benefits and decision-making. As a result, when Ontario would not engage with us meaningfully on these important issues, it meant that they did not get addressed at all. [Emphasis added.]
[185] During submissions, the court queried what appeared to be fundamental differences in the facts and whether this application was appropriate for a judicial review. Having heard all of the submissions and having had the opportunity to review the extensive documentation, I am satisfied that there is a lack of conflict on the facts essential to the decisions that the court must make. There are differences in perspective. However, the extensive documentation and uncontroversial evidence provides a reasonable basis for deciding the issues in this case.
Standard of Review
[186] The decision of the Director, dated December 2, 2011, pursuant to s. 141(3)(a) of the Mining Act[^11] to acknowledge the PCP constitutes the exercise of a statutory power of decision, which is subject to review pursuant to s. 2 of the Judicial Review Procedure Act.[^12] That decision is challenged on the basis of improper delegation of the duty to consult as well as failure to assess the Applicant’s claim and failure to share its initial assessment with the Applicant.
[187] In Haida Nation v. British Columbia (Ministry of Forests),[^13] the Supreme Court of Canada observed that the province of British Columbia had not established a process by which one could review the government’s conduct when a failure to discharge the duty to consult and accommodate was raised. In the absence of such a process, the court concluded that the traditional approach ought to be applied. Namely on questions of law, a decision-maker must generally be correct; on questions of mixed fact and law, a reviewing body may owe a degree of deference to the decision-maker. The Court held as follows, at para. 61:
The existence or extent of the duty to consult or accommodate is a legal question in the sense that it defines a legal duty. However, it is typically premised on an assessment of the facts. It follows that a degree of deference to the findings of fact of the initial adjudicator may be appropriate. The need for deference and its degree will depend on the nature of the question the tribunal was addressing and the extent to which the facts were within the expertise of the tribunal. Absent error on legal issues, the tribunal may be in a better position to evaluate the issue than the reviewing court, and some degree of deference may be required. In such a case, the standard of review is likely to be reasonableness. To the extent that the issue is one of pure law, and can be isolated from the issues of fact, the standard is correctness. However, where the two are inextricably entwined, the standard will likely be reasonableness. [Citations omitted.]
[188] The Court went on to find as follows, at para. 62:
The process itself would likely fall to be examined on a standard of reasonableness. Perfect satisfaction is not required; the question is whether the regulatory scheme or government action “viewed as a whole, accommodates the collective aboriginal right in question”. What is required is not perfection, but reasonableness. . . . “in … information and consultation the concept of reasonableness must come into play. … So long as every reasonable effort is made to inform and to consult, such efforts would suffice.” [Citations omitted.]
[189] Counsel for the Applicant takes the position that the standard of review is correctness based on the decision in Enge v. Mandeville.[^14] The Supreme Court of the Northwest Territories held, at para. 26, as follows:
The existence and extent of the duty to consult are questions of law which are reviewable on a standard of correctness. To the extent that the Crown’s assessment of its duty to consult is premised on findings of facts, a degree of deference may be appropriate with respect to findings of fact. The Crown’s preliminary assessment of the strength of the claim and the assessment of the potential impact on the right must be correct.
At para. 27, the court went on to adopt the same standard of review approach as in Haida Nation:
The process used for consultation and the results of the consultation are subject to the reasonableness standard. Determining whether the Crown has complied with its duty to consult is subject to the standard of reasonableness. The focus is on the process of consultation and accommodation rather than the outcome. The Crown’s choice of process will be reasonable as long as it falls within a range of possible, acceptable choices.
[190] In this case, it is accepted that the Crown alone had a duty to consult and accommodate and that the Crown is permitted to delegate only procedural issues to the Proponent. The issue at the root of this judicial review application is the extent to which the Crown fulfilled that duty. The resolution of that issue is a question of mixed fact and law.
[191] I conclude that the issues of whether Ontario assessed the nature of the WFN claims, whether it failed to share that assessment with WFN, and whether it improperly delegated its duty to consult are questions of mixed fact and law. As a result, deference is owed to the decision of the Director. The conduct of Ontario is to be reviewed on a standard of reasonableness.
The Mining Act and Regulation
[192] Section 2 of the Mining Act reads as follows:
The purpose of this Act is to encourage prospecting, staking and exploration for the development of mineral resources, in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult, and to minimize the impact of these activities on public health and safety and the environment.
[193] In s. 139(1) of the Act the following terms are defined:
“advanced exploration” means the excavation of an exploratory shaft, adit or decline, the extraction of prescribed material in excess of the prescribed quantity, whether the extraction involves the disturbance or movement of prescribed material located above or below the surface of the ground, the installation of a mill for test purposes or any other prescribed work;
“closure plan” means a plan to rehabilitate a site or mine hazard that has been prepared in the prescribed manner and filed in accordance with this Act and that includes provision in the prescribed manner of financial assurance to the Crown for the performance of the closure plan requirements;
“mine production” means mining that is producing any mineral or mineral-bearing substance for immediate sale or stockpiling for future sale, and includes the development of a mine for such purposes.
[194] Section 140 of the Act at the time of the Director’s decision provided as follows:[^15]
(1) No proponent other than a proponent who is subject to a closure plan shall commence or recommence advanced exploration without,
(a) giving notice to the Director in the prescribed form and manner;
(b) giving public notice under subsection (2) at the prescribed time and in the prescribed form and manner, if required by the Director;
(c) filing a certified closure plan with the Director as required under subsection (3); and
(d) receiving a written acknowledgment of receipt for the certified closure plan from the Director.
(4) Within 45 days after the filing of the certified closure plan, the Director shall,
(a) acknowledge receipt, in writing, of the closure plan to the proponent; or
(b) return the closure plan for refiling if it does not sufficiently address all of the prescribed reporting requirements for a certified closure plan. [Emphasis added.]
[195] Section 141(1) is similar to s. 140(1), but is applicable to mine production.[^16]
[196] The effect of s. 140 and s. 141 is that neither advanced exploration nor mine production can commence until the Director has acknowledged receipt of the closure plan.
[197] The requirements for the closure plan are set out in ss. 11 and 12 of the Regulation. Section 12 prescribes the following:
(1) A proponent is solely responsible for ensuring that the measures contained in a closure plan filed or approved for the rehabilitation of a project site under Part VII of the Act are carried out in accordance with it . . .
(2) A closure plan filed under Part VII shall contain the following certificate signed by the proponent where the proponent is an individual, or the chief financial officer and one other senior officer where the proponent is a corporation:
I (We) hereby certify that,
(a) the attached closure plan complies in all respects with the Mining Act and this Regulation, including the Code;
(b) the proponent relied upon qualified professionals in the preparation of the closure plan, where required, under the Mining Act and this Regulation, including the Code;
(c) the cost estimates of the rehabilitation work described in the attached closure plan are based on the market value cost of the goods and services required by the work;
(d) the amount of financial assurance provided for in the attached plan is adequate and sufficient to cover the cost of the rehabilitation work required in order to comply with the Mining Act and this Regulation, including the Code;
(e) the proponent has carried out reasonable and good faith consultations with appropriate representatives of all aboriginal peoples affected by the project;
(f) The attached closure plan constitutes full, true and plain disclosure of the rehabilitation work currently required to restore the site to its former use or condition or to make the site suitable for a use the Director sees fit in accordance with the Mining Act and this Regulation, including the Code.[^17]
Analysis
A. Introduction
[198] All counsel agree that pursuant to s. 2 of the Mining Act and pursuant to the common law Ontario had a duty to consult and accommodate. Before addressing the specific issues in this case, it is necessary to consider the legal context.
[199] In Haida Nation the underlying issue was the duty to consult before title to the land and Aboriginal rights had been determined. The principles nonetheless apply to this case where the WFN asserted Aboriginal and treaty rights. The following excerpts from Haida Nation, with citations omitted, are relevant:
The Source of a Duty to Consult and Accommodate
The government’s duty to consult with Aboriginal peoples and accommodate their interests is grounded in the honour of the Crown. The honour of the Crown is always at stake in its dealings with Aboriginal peoples. It is not a mere incantation, but rather a core precept that finds its application in concrete practices. (para. 16)
The historical roots of the principle of the honour of the Crown suggest that it must be understood generously in order to reflect the underlying realities from which it stems. In all its dealings with Aboriginal peoples, from the assertion of sovereignty to the resolution of claims and the implementation of treaties, the Crown must act honourably. Nothing less is required if we are to achieve “the reconciliation of the pre-existence of aboriginal societies with the sovereignty of the Crown”. (para. 17)
The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of “sharp dealing”. (para. 19)
When the Duty to Consult and Accommodate Arises
But, when precisely does a duty to consult arise? The foundation of the duty in the Crown’s honour and the goal of reconciliation suggest that the duty arises when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it. (para. 35)
There is a distinction between knowledge sufficient to trigger a duty to consult and, if appropriate, accommodate, and the content or scope of the duty in a particular case. Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances, as discussed more fully below. A dubious or peripheral claim may attract a mere duty of notice, while a stronger claim may attract more stringent duties. (para. 37)
The Scope and Content of the Duty to Consult and Accommodate
The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed. (para. 39)
At all stages, good faith on both sides is required. The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. (para. 42)
Against this background, I turn to the kind of duties that may arise in different situations. In this respect, the concept of a spectrum may be helpful, not to suggest watertight legal compartments but rather to indicate what the honour of the Crown may require in particular circumstances. At one end of the spectrum lie cases where the claim to title is weak, the Aboriginal right limited, or the potential for infringement minor. In such cases, the only duty on the Crown may be to give notice, disclose information, and discuss any issues raised in response to the notice. “‘[C]onsultation’ in its least technical definition is talking together for mutual understanding.” (para. 43)
At the other end of the spectrum lie cases where a strong prima facie case for the claim is established, the right and potential infringement is of high significance to the Aboriginal peoples, and the risk of non-compensable damage is high. In such cases deep consultation, aimed at finding a satisfactory interim solution, may be required. While precise requirements will vary with the circumstances, the consultation required at this stage may entail the opportunity to make submissions for consideration, formal participation in the decision-making process, and provision of written reasons to show that Aboriginal concerns were considered and to reveal the impact they had on the decision. This list is neither exhaustive, nor mandatory for every case. The government may wish to adopt dispute resolution procedures like mediation or administrative regimes with impartial decision-makers in complex or difficult cases. (para. 44)
Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. (para. 45)
Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice’s Guide for Consultation with Mäori (1997) provides insight:
Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed. . . . (para. 46)
When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall, at para. 22: “...the process of accommodation of the treaty right may best be resolved by consultation and negotiation”. (para. 47)
This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take. (para. 48)
This flows from the meaning of “accommodate”. The terms “accommodate” and “accommodation” have been defined as to “adapt, harmonize, reconcile” . . . “an adjustment or adaptation to suit a special or different purpose . . . a convenient arrangement; a settlement or compromise”. The accommodation that may result from pre-proof consultation is just this — seeking compromise in an attempt to harmonize conflicting interests and move further down the path of reconciliation. A commitment to the process does not require a duty to agree. But it does require good faith efforts to understand each other’s concerns and move to address them. (para. 49)
B. Assessment of the claims asserted by WFN
[200] As indicated in paras. 43 to 45 of Haida Nation, the duty to consult and accommodate is predicated on the nature of the claim. In order for the Crown to have knowledge of the nature of the claim, the Crown must assess the actual or potential claim.
[201] In the responding material, counsel for Ontario provided the Director’s evidence about the assessment of the claim. It would have been helpful to have more information about the Ministry’s internal processes. However, based on what is provided, it is clear that Ontario has established a Consultation Screening Process and a Project Screening Guide; that a professional (as opposed to an administrative person) is required to complete the form; that the Consultation Screening Form is completed shortly after notice is given by a Proponent to the Ministry, for example, this was done in February 2009 (paragraphs 20-21 above) and in May 2011 (paragraphs 83-85 above); that the Consultation Screening Form requires that Ontario address the land status of the project area, the area sensitivity, and the impact of activity on protected rights; and that, the engineer must use all of that information to determine the level of consultation required.
[202] I am persuaded that the institutional process established by Ontario by which it assessed the potential or actual impact of a claim was reasonable.
[203] I am also satisfied that the assessment made by Ontario regarding the mine production stage in this case was reasonable: it recognized that WFN had rights under Treaty 3; it considered all potential effects deriving from WFN’s Treaty 3 rights; it identified that harvesting rights and particularly fishing was the key activity that would be impacted; it was aware that significant development had occurred earlier on the land in question and that this was a brownfield site; in May, 2011, it had updated its February 2009 screening form to take into account additional information provided in the initial PCP and the increased activity to be undertaken by the Proponent; and it had therefore increased the level of consultation from “Notification Only” to “Standard Consultation”.
[204] As the Supreme Court of Canada indicated in para. 46 of Haida Nation, the Crown must be responsive to new information and its impact on the original assessment. The Director did not refer to any subsequent re-assessment of the Project regarding WFN treaty rights from which I infer that another screening form was not prepared. However, the absence of another Consultation Screening Form does not mean that Ontario failed to continually monitor the impact of the additional information. The ArrowBlade report is dated September 28, 2011, and while there is no specific email sending it to the Director, it is clear that the penultimate draft, dated August 29, 2011, and the final report were provided to the Director in a timely way. It is also clear from the communications in October and November of 2011 that the issues raised in that report were considered by the Director and her staff. Even without a formal updated screening form, I am satisfied that Ontario acted reasonably in continuing to re-assess WFN’s Aboriginal and treaty rights as new information was received.
C. Sharing the Assessment with the WFN
[205] There is no evidence that any part of the May 30, 2011 assessment or the results of the assessment were shared with WFN. However, the purpose of the assessment is for Ontario to make a decision as to the level of consultation required. At the meeting held on May 6th, before the May 30th assessment had been completed, all of the evidence indicates that Ontario made it clear to both Rubicon and WFN that it had a duty to consult and accommodate and that it intended to do so.
[206] Counsel for WFN did not provide authority for the proposition that Ontario had a duty to share the assessment with WFN. In Grassy Narrows[^18] a.k.a. Keewatin (S.C.C.), at para. 52, the Supreme Court of Canada held that “when a province intends to take up lands for the purposes of a project within its jurisdiction, the Crown must inform itself of the impact the project will have on the exercise by the Ojibway of their rights to hunt, fish and trap, and communicate its findings to them” (emphasis added).
[207] This court ought not to review Ontario’s 2011 decision to not share its assessment with WFN based on a judgment of the Supreme Court in 2014. Having said that, it would have been useful if Ontario had shared the May 30th assessment because that would have signaled to WFN what the expectations around consultation would be. However, the decision by Ontario to not share the assessment was reasonable given that, as indicated in paragraph 205 of these reasons, Ontario acknowledged that it had a duty to consult and accommodate, that it intended to do so, and that Ministry staff consistently conducted themselves in accordance with that duty.
D. Ontario’s duty to consult and accommodate and improper delegation
[208] Returning to Haida Nation, the Supreme Court of Canada had the following to say about delegation, at para. 53:
It is suggested (per Lambert J.A.) that a third party’s obligation to consult Aboriginal peoples may arise from the ability of the third party to rely on justification as a defence against infringement. However, the duty to consult and accommodate, as discussed above, flows from the Crown’s assumption of sovereignty over lands and resources formerly held by the Aboriginal group. This theory provides no support for an obligation on third parties to consult or accommodate. The Crown alone remains legally responsible for the consequences of its actions and interactions with third parties, that affect Aboriginal interests. The Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development; this is not infrequently done in environment assessments. . . . However, the ultimate legal responsibility for consultation and accommodation rests with the Crown. The honour of the Crown cannot be delegated.
[209] That passage is reflected in s. 2 of the Mining Act referred to above.
[210] Definitions or at least expectations related to consultation, accommodation, and delegation are found above in Haida Nation, at paras. 43-49 and 53.
[211] In the Notice of Application for Judicial Review, issued December 20, 2012, WFN relied on its prima facie claim of its right to hunt or fish guaranteed under Treaty 3. As indicated above in paragraph 3, Treaty 3 establishes hunting and fishing rights for WFN. The factum was silent on how Ontario had failed to fulfill its duty to consult and accommodate on treaty rights to hunt or fish. Nor did counsel make such submissions.
[212] Chief Cameron asserted in his affidavit, at paras. 95-98, quoted at paragraph 184 of these reasons, that WFN has treaty rights to shared decision-making and revenue sharing. In the factum filed on behalf of the Applicant and in submissions, WFN insists that Ontario failed to consult on shared decision-making and revenue-sharing and accommodate its rights. Treaty 3 makes no express or implied reference to shared decision-making and revenue sharing.
[213] As the detailed outline of events makes clear, the issue of revenue-sharing was on the table at the first meeting in November 2010 referred to as a proposed benefits agreement (paragraphs 27 and 38 above). It was mentioned again in the note-to-file by Hinz in February 2011 (paragraph 30 above). Hinz mentioned it in his letter, dated March 4, 2011 (paragraph 37 above). It was on the agenda for the March 25th meeting (paragraph 42 above). It was mentioned in Chief Cameron’s letter, dated March 25, 2011 (paragraph 45 above). Based on the discussion at the May 6th meeting, and as reflected in the minutes, Boyd, Blancher-Smith, and Chief Cameron all agree that Blancher-Smith said that Ontario would not consult on revenue-sharing because that was an issue between WFN and Rubicon (paragraph 72 above).
[214] From March 2011, when WFN made it clear that they expected to negotiate separately from LSFN, the issue of revenue-sharing was part of the discussions with Rubicon, which as Chief Cameron noted in his affidavit were confidential and not to be shared with Ontario (paragraph 133 above). In his letter, dated August 26, 2011, Adamson referred to the negotiations (paragraph 104 above). One of the two days of the September 8 and 9, 2011 meetings between WFN and Rubicon was devoted to discussing a benefits agreement (paragraph 107 above). The minutes of the meeting held on October 4, 2011 indicate that WFN’s focus was mainly on the sharing of resources (paragraph 113 above). One of the two days of the October 13 and 14, 2011 meetings was devoted to negotiating a benefits agreement (paragraph 115 above).
[215] As Chief Cameron said, between May 6, 2011 and December 2, 2011, WFN and Rubicon met for two purposes: to consult about the Project and to negotiate an Impact Benefits Agreement (paragraph 133 above). WFN was critical of Rubicon for including references to negotiation of the benefits agreement in the consultation log because it expected those negotiations not to be shared with Ontario or treated as part of the consultation and accommodation of treaty rights (paragraph 134 above). As late as November 21, 2011, there were still discussions about a benefits agreement (paragraph 143 above).
[216] After almost a year of discussions relating to sharing of benefits between WFN and Rubicon in the absence of Ontario, which was agreed to by WFN, Rubicon, and Ontario, Chief Cameron’s primary objection to the Director acknowledging the PCP in his November 28th letter to Blancher-Smith was the failure of Ontario to negotiate resource sharing (paragraph 154).
[217] I am not persuaded that Ontario had a duty to consult and accommodate with respect to revenue-sharing and shared decision-making. On the record before me, I do not accept that WFN had such rights arising from Treaty 3. The evidence makes it clear that WFN understood and agreed that the issue of revenue-sharing (and shared decision-making) was to be negotiated between WFN and Rubicon. It was only at the penultimate moment that WFN took the position that Ontario had a duty to consult on those issues. I conclude that WFN’s assertion that Ontario failed to consult and accommodate on those issues is without foundation.
[218] I turn to whether Ontario fulfilled its duty to consult and accommodate with respect to treaty rights that were acknowledged, namely fishing. In the May 30th assessment, Ontario indicated that the impact of the Project on fishing was medium and the impact on cultural/spiritual was low and the overall score was medium. The ArrowBlade report, dated September 28th, identified the impact on harvesting rights. Ontario was alive to those concerns.
[219] WFN asserts that Ontario delegated its duty to consult and accommodate. That requires an examination of the relationships between WFN and Rubicon, between WFN and Ontario, and amongst WFN, Rubicon, and Ontario.
[220] Rubicon initially filed the PCP in February 2011. In March, when it became clear that LSFN and WFN intended to negotiate separately, Hinz suggested that Rubicon delay pursuing the PCP (paragraph 31 above). The Director expressed concern about the adequacy of consultation (paragraph 51 above) and Rubicon withdrew its PCP. In April, when Rubicon wanted to re-file, the Director discouraged Rubicon from doing so (paragraph 61 above) and Rubicon did not file. At the meeting on May 6th, the Director suggested that Rubicon not re-file (paragraph 76 above) and Rubicon acquiesced. In June, the Director recommended against re-filing (paragraph 95 above) and Rubicon respected that advice. Rubicon was alive to the leadership that Ontario brought to the Project and, by following the Director’s suggestions or recommendations, Rubicon acknowledged that Ontario had the constitutional duty to consult.
[221] Rubicon originally understood that it was to negotiate with LSFN on its own behalf and on behalf of WFN. It was only in March 2011 that WFN took the position that the negotiations would be separate. Rubicon immediately complied. The Director insisted that Rubicon ensure that WFN was included and brought up-to-date and Rubicon did that.
[222] Ontario repeatedly offered to consult directly with WFN (paragraphs 37, 59, 62, 90, 131, 135 above), but WFN insisted that it negotiate on its own with Rubicon as contemplated by its Consultation and Accommodation Protocol both with respect to treaty rights and revenue-sharing. Ontario respected that request.
[223] As the evidence indicates, while Ontario was not at the WFN-Rubicon negotiating table, Ministry staff were regularly keeping in touch with representatives of both WFN and Rubicon; were prodding Rubicon to provide finances to assist WFN in engaging consultants; and were ensuring that the process was meaningful and continuous; and were routinely keeping the Director informed (paragraph 82 above).
[224] Decision makers were consistently at the negotiating table. The Proponent ensured that senior people in the company participated actively in the negotiations, including its President. The Director was engaged throughout although she did not attend the meeting on November 25, 2011.
[225] As Chief Cameron indicated in his letter, dated October 26, 2011, to the Director (paragraph 128 above), Rubicon did not disagree with anything in the consultant’s report. Indeed, Rubicon accepted the concerns raised in that report and in Table 14-2 indicated its responses. It is the case that many of the concerns were responded to with “best efforts” or “reasonable efforts”. But that does not mean that they were vague promises. The events in question were contemplated to occur when the mine closed, which would be years in the future. It was reasonable for Ontario to accept the commitments by Rubicon to monitor WFN’s concerns in the meantime and take the mitigation steps indicated in response to concerns raised.
[226] It must be remembered that this was a brownfield site. There had already been considerable historical development and mining at the site. The duty to consult and accommodate must be considered in that context.
[227] It is the case that the Director described her function as “oversight” (see paragraph 72 above). If that was what actually occurred, it would have been problematic. However, as the objective evidence indicates, the role played by the Director and Ministry staff was far more assertive and responsive than the passive role that “oversight” suggests.
[228] It is also the case that Rubicon referenced its duty to consult (paragraph 30 above), which created the inference it had taken on the Crown’s duty. The certification required by s. 12(2)(e) of the Regulation (as it then existed) makes it appear that Rubicon did have a duty to carry out reasonable and good faith consultation which was independent of the duty on the Crown. However, as the acknowledged PCP indicated, Rubicon was acting under the guidance of the Director. It is clear that Ontario was actively involved in ensuring that consultations occurred between Rubicon and WFN and in affording every reasonable opportunity for consultations between Ontario and WFN.
[229] Ontario did delegate to Rubicon, but only on procedural issues related to asserted and acknowledged treaty rights, including by encouraging Rubicon to participate in the development of the workplan and budget; by promoting meaningful communications; and by ensuring that WFN received sufficient finances to obtain advice from professional consultants However, Ontario acknowledged that it had the ultimate responsibility for ensuring appropriate consultation (paragraph 135 above). Furthermore, Ontario did demonstrate that responsibility in various ways including by discouraging Rubicon from filing the PCP and or encouraging its withdrawal to afford WFN sufficient time to articulate its concerns; by offering to and holding meetings amongst decision-makers; by ensuring that Rubicon responded appropriately to the consultant’s report; and by assessing Rubicon’s response to the concerns raised by WFN and in the ArrowBlade report.
[230] The court is required to analyze the events and the circumstances objectively. On that basis, Ontario met its duty to consult within the meaning of Haida Nation. Furthermore, Ontario did not delegate its duty to consult within the context of delegation in Haida Nation.
[231] In their submissions, counsel for Rubicon took the position that the consultation process was exemplary and counsel for Ontario asserted that this was a model for consultation. While Ontario did fulfill its duty to consult, I do not agree that the consultation process was exemplary or was a model for other projects. For example, areas of improvement at the outset, include the following:
(a) establishing a protocol for consultation and accommodation;
(b) agreeing on what subject matters will be discussed with whom;
(c) agreeing on what matters are to be kept confidential as between which parties and what written communications are shared with non-recipients;
(d) defining roles as between Ontario (which has a constitutional duty to respect the existing Aboriginal and treaty rights of Aboriginal peoples of Canada pursuant to s. 35 of the Constitution Act, 1982[^19] and a statutory duty pursuant to s. 2 of the Mining Act to consult and minimize impact, and a common law duty to consult consistent with Haida Nation) and the Proponent (which has a duty to comply with any written direction regarding Aboriginal consultation provided by the Director pursuant to the current s. 12(2)(e) of the Regulation)[^20], and the First Nation (which has a common law duty to negotiate in good faith as indicated in para. 42 of Haida Nation).
[232] In addition, it would be reasonable for a First Nation to ask for funding for administrative assistance. It is clear from the comprehensive record assembled by each of Rubicon and Ontario as opposed to the less detailed record assembled by WFN that the former had professionals assigned to the tasks arising from consultation and accommodation and the latter did not.
[233] I turn to Ontario’s duty to accommodate. The ArrowBlade report identified issues of concern. Rubicon accepted those concerns and Chief Cameron acknowledged that Rubicon accepted that those concerns had to be addressed. Rubicon revised the initial PCP and the PCP filed on October 17th dealt with every one of the issues raised in the report. The issue was not whether the concerns would be addressed, but the adequacy of the mitigation efforts.
[234] As indicated in paragraph 121 above, many of the responses to the concerns was a commitment by Rubicon to make reasonable efforts to take certain steps. But importantly, as indicated in Table 14-2 and in the letter of transmittal (paragraph 119 above), Rubicon agreed to a process to monitor the impact of the mine production as it unfolded for some years to come. It was reasonable for the Director to accept the responses by Rubicon to the concerns raised in the ArrowBlade report. Chief Cameron considered them to be vague promises. However, given that the concerns would arise when production ceased and the mine closed at some point in the future, there was sufficient specificity to the steps to be taken along with the certification required by s. 12(2) of the Regulation that the amount of financial assurance provided was adequate and sufficient to cover the cost of rehabilitation work. I am satisfied that Ontario appropriately analyzed the need for accommodation within the context of a brownfield site and that Ontario fulfilled its duty to accommodate by ensuring that Rubicon undertook in a meaningful way to do what was required to mitigate concerns raised in the third party report.
[235] Based on the evidence of Chief Cameron, I understand that WFN’s perspective is that WFN was brought into the consultations late; that there were insufficient opportunities to consult in a manner that members of the WFN considered meaningful; that Rubicon rushed into filing the PCP; and that Rubicon was calling the shots and that the Director was doing Rubicon’s bidding. However, that subjective perspective is not borne out by an objective consideration of the extensive documentation. As the Supreme Court of Canada held in Haida Nation, and contrary to the Consultation and Accommodation Protocol referred to in paragraphs 77-78 above, the duty to consult and accommodate does not mean, in the circumstances of this case, that the First Nation must consent before a mine project is approved nor does it mean that the First Nation has a veto.
Conclusions
[236] The process established by Ontario to assess potential Aboriginal claims was reasonable.
[237] The implementation of that process in this case was reasonable.
[238] Ontario fulfilled its duty to consult and accommodate.
[239] Ontario did not improperly delegate its duty to consult and accommodate to the Proponent.
[240] The decision by the Director, dated December 2, 2011, to acknowledge the PCP was reasonable.
Remedy
[241] Counsel for WFN took the position that Ontario had not fulfilled its duty to consult and accommodate and that the decision, dated December 2, 2011, should be suspended until that duty was met. Alternatively, counsel for WFN took the position that Ontario had improperly delegated its duty to consult and accommodate and therefore the decision should be quashed.
[242] As counsel for both Respondents pointed out, there is no authority to suspend the decision.
[243] Because of the conclusion reached, I need not deal with remedy. However, given the evidence provided and submissions heard on the issue of remedy, I make one observation, namely that, if there had been an improper delegation or indeed a failure to fulfill the duty to consult and accommodate, then the remedy would have been against Ontario, not against Rubicon.
ORDER TO GO AS FOLLOWS:
[244] The application for judicial review is dismissed.
[245] If by September 15, 2014, counsel are unable to agree as to costs, then counsel shall make submissions in writing on this schedule: counsel for Ontario and counsel for Rubicon by September 29, 2014; counsel for WFN by October 14, 2014; reply by counsel for Ontario and counsel for Rubicon by October 28, 2014.
Kiteley J.
Hackland R.S.J.
Matlow J.
Released: August 28-2014
[^1]: 2013 ONCA 158, 114 O.R. (3d) 401. [^2]: O. Reg. 240/00 that was in effect before November 1, 2012. [^3]: 2011 ONSC 4801, [2012] 1 C.N.L.R. 13. [^4]: In her affidavit, Blancher-Smith attached this letter dated November 3rd, not on letterhead. Chief Cameron attached the letter with the same content on letterhead dated November 8th. [^5]: The copy attached to Blancher-Smith’s affidavit is dated November 24th but was faxed on November 28th. Copy attached to Chief Cameron’s affidavit is dated November 28th. [^6]: No Impact Benefits Agreement had been reached at the time affidavits were filed in this proceeding. [^7]: 2012 ONCA 472. [^8]: Supra, note 1 [^9]: [2013] S.C.C.A. No. 215. [^10]: Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48. [^11]: This was the provision regarding acknowledgement of a production closure plan at the time of the decision. The Mining Act has since been amended and this provision is now s. 141(4)(a). [^12]: R.S.O. 1990, c. J.1. [^13]: 2004 SCC 73, [2004] 3 S.C.R. 511. [^14]: 2013 NWTSC 33, [2013] 4 C.N.L.R. 50. [^15]: Section 140 of the Act was re-enacted on November 1, 2012, which is very similar to the old s. 140, but not identical. The 45 day timing for the Director giving acknowledgement of the closure plan has stayed the same. [^16]: Section 141 of the Act was re-enacted on November 1, 2012. The new provision is almost identical to the old s. 141 that was in place at the time of the Director’s decision including the timing for acknowledgement. [^17]: On November 1, 2012, s. 12(2)(e) was changed to read “the proponent has complied with any written direction regarding Aboriginal consultation provided by the Director pursuant to subsection 8.1 (2);” [^18]: Supra note 10. [^19]: being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11. [^20]: Supra, Note 17