CITATION: Wahgoshig First Nation v. Solid Gold Resources Corp., 2013 ONSC 632
DIVISIONAL COURT FILE NO.: 27/12
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, HERMAN AND RAY JJ.
BETWEEN:
WAHGOSHIG FIRST NATION
Plaintiff
(Respondent)
– and –
SOLID GOLD RESOURCES CORP.
and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
(Appellant)
Kate Kempton, Michael McClurg and Jessica Iveson, for the Plaintiff (Respondent)
Neal J. Smitheman, Tracy A. Pratt and Andrew M. Baerg, for the Defendant (Appellant)
Dennis W. Brown, Q.C., Walter Myrka and Tom Schreiter
HEARD at Toronto: January 25, 2013
ORAL REASONS FOR JUDGMENT
ASTON J. (orally)
[1] This is an appeal of C. Brown J.’s order of January 3, 2012 granting an interim injunction enjoining the Defendant, Solid Gold, from conducting exploration activities for a period of 120 days on a claims block on which Wahgoshig First Nation claims to have constitutional rights. The order also required Solid Gold and the Province of Ontario to engage in consultations with Wahgoshig First Nation concerning future activity by Solid Gold on the claims block.
[2] Since this was an interlocutory order, leave to appeal was required. Leave was granted by the order of Wilton Siegel J., on September 4, 2012. In his lengthy reasons, the leave Judge found that there were conflicting decisions concerning Solid Gold’s duty to consult, expressed doubt as to the correctness of the decision when the Mining Act imposed no obligation to consult, and concluded by noting that in the absence of the implementation of the proposed changes to the Mining Act, an important issue was raised concerning the respective obligations of the Crown and mining exploration companies towards First Nations whose rights might be adversely affected.
[3] On November 1, 2012, the Mining Amendment Act, 2009 came into force, requiring holders of mining claims to file exploration plans and apply for exploration permits before commencing their activities where aboriginal interests may be involved. While new regulations do not come into effect until April 1, 2013, there is a transitional provision that gives the Director discretion to require compliance with ss. 78.2 and 78.3 of the new Act, sections which, amongst other things, require consultations.
[4] Counsel for Ontario takes the position that this appeal is moot in light of the new legislative regime. Wahgoshig First Nation does not object to the Crown’s position but is willing to address the appeal on its merits. Solid Gold disagrees that the appeal is moot.
[5] The doctrine of mootness is part of a practice in Canadian courts to decline to deal with cases that raise only hypothetical or abstract questions. The approach to mootness involves a two-step analysis. The first step is to determine whether the tangible and concrete dispute has disappeared rendering the issues academic. If it has, the court will then decide whether it should nonetheless exercise its discretion to hear the case (see Borowski v. Canada (Attorney General), [1989] 1 S.C.R. 342).
[6] The issue before C. Brown J. was limited to whether Solid Gold was required to stop its exploration activities and consult with Wahgoshig First Nation. The 120 day time period imposed by C. Brown J. for the consultation process has expired. Solid Gold submits that the dispute between the parties is still a live dispute insofar as the injunction provides that Wahgoshig First Nation can seek an extension of time and the new legislative regime is not fully in effect until April 1, 2013.
[7] Arguably, the live issue with respect to Wahgoshig First Nation’s constitutional right to require Solid Gold to cease its exploration activities and consult with it, has not been extinguished. However, the recently passed regulations under the Mining Act now explicitly stipulate the rights of interested parties and procedures for mining exploration companies where aboriginal land issues are involved. The rights and obligations of the parties rest, at least in part, on a new foundation.
[8] Although, prior to April 1, 2013, the applicability of ss. 78.2 and 78.3 of the new Act depends upon the Director’s discretion under the transitional provisions, the fact remains that the current legislative scheme is already different from what existed at the time that the injunction application was heard by C. Brown J.
[9] At the core of this matter lies the Crown’s duty to consult with aboriginal populations where Aboriginal and treaty rights are at stake. That issue remains unresolved, but the basis upon which the interim injunction was granted has fundamentally changed. If Wahgoshig First Nation were to seek an extension of the injunction, it would be in the context of the new regulatory scheme. As such, the issue of whether the injunction should have been granted on the basis of the law as it existed at the time of the hearing before C. Brown J. is an academic exercise.
[10] The question as to whether we should in any event exercise our discretion and hear this appeal requires a consideration of whether the public importance of the issue and the public interest require that the issue be resolved by this court.
[11] Solid Gold argues that there is a good reason for the court to exercise its jurisdiction to hear the case in view of the fact that it is has recently initiated a claim against the Crown. Solid Gold seeks substantial damages on the basis of negligent misrepresentations by the Crown with respect to the duty to consult Wahgoshig First Nation.
[12] The case before us can be distinguished from the decision in Equity Waste Management of Canada v. Panorama Investment Group Ltd. (O.C.A.). In this case, the determination of the propriety of an interim injunction without a full evidentiary record would have little or no bearing on the determination of Solid Gold’s claim against the Crown.
[13] It is premature to determine the impact of the new legislative regime. If there is a dispute, it will have to be addressed at first instance in an appropriate case.
[14] We conclude that we should not under these circumstances exercise our discretion to decide this appeal.
[15] Solid Gold has asked that, in the event we decline to hear the appeal, we declare that there is no longer any injunction in place. Wahgoshig First Nation has asked that we order that the status quo remain in place until the earliest of the Director making an order under the transitional provision or alternatively, April 1, 2013.
[16] We cannot accede to either request without getting into a determination of the merits of the appeal.
[17] Wahgoshig First Nation has not sought an extension of the injunction. Nor has it asked the Director to take any steps under the transitional provisions of the new statutory regime, because counsel understood the status quo of the interim injunction would remain in place until this appeal was heard and decided.
[18] We are mindful that by not hearing the appeal, there is nothing formally in place to prevent Solid Gold from resuming its exploration activity. On its face, the interim injunction has expired. Our decision today is without prejudice to Wahgoshig First Nation’s right to seek an extension of the injunction, or a fresh injunction or to request the Director to act under the transitional provisions.
[19] The rights and obligations of the parties not already enshrined in the constitutional rights of Wahgoshig First Nation ought to be resolved with the new regulatory regime in mind.
[20] We therefore accept the Crown’s submission that the appeal is moot and should not be heard.
COSTS
[21] I have endorsed the Appeal Book on behalf of the panel: For oral reasons given and recorded, we decline to hear this appeal, finding it to be moot. Costs are reserved. If counsel are not able to resolve costs, any party seeking costs will serve and file its submission with the court office within 30 days and the other parties will have 10 days to respond with their submission. All submissions are limited to 5 pages.
ASTON J.
HERMAN J.
RAY J.
Date of Reasons for Judgment: January 25, 2013
Date of Release: March 12, 2013
CITATION: Wahgoshig First Nation v. Solid Gold Resources Corp., 2013 ONSC 632
DIVISIONAL COURT FILE NO.: 27/12
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
ASTON, HERMAN AND RAY JJ.
BETWEEN:
WAHGOSHIG FIRST NATION
Plaintiff
(Respondent)
– and –
SOLID GOLD RESOURCES CORP.
and HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO
Defendants
(Appellant)
ORAL REASONS FOR JUDGMENT
ASTON J.
Date of Reasons for Judgment: January 25, 2013
Date of Release: March 12, 2013