CITATION: Cat Lake First Nation v. First Mining Gold Corporation et al, 2024 ONSC 1163
COURT FILE NO.: DC-24-0003-JR
DATE: 2024-02-23
DIVISIONAL COURT - ONTARIO
RE: Cat Lake First Nation – Applicant / Moving Party
v.
First Mining Gold Corporation and
The Ministry of Natural Resources and Forestry - Respondents
HEARD: February 23, 2024
BEFORE: Regional Senior Justice W. D. Newton
COUNSEL: D. Goudge for the Applicant / Moving Party
J. Picone for Respondent First Mining Gold Corporation
T. Lipton for the Respondent Ministry of the Attorney General
Endorsement
[1] On February 9, 2024, the Ministry of Natural Resources and Forestry (MNRF or Ministry) authorized, effective February 8, 2024, First Mining Gold Corporation (FMG) to construct an 18 km winter road to FMG’s exploration site. The construction authorized included the felling of trees, without stump extraction, and the packing of surface snow and ice. No excavation is permitted. The road is authorized to be used between November 1 to March 15 each season for five years only after which the road is to be decommissioned.
[2] Cat Lake First Nation has commenced an application for judicial review in the District of Thunder Bay, two days ago, on February 21, 2023, seeking review of the Ministry’s decision to authorize this work on the grounds that the work is inconsistent with its members ability to exercise their Aboriginal Rights in this area arguing that the Ministry’s consultation process was “woefully inadequate”. The same day, February 21, 2023, Cat Lake First Nation served FMG with a motion for an injunction or stay of the Ministry’s authorization. Yesterday, Cat Lake First Nation requested an urgent case conference to expedite the hearing of the motion for an injunction/stay.
[3] The parties, including the Ministry, appeared before me today to set the timetable for the hearing of that motion and to address whether an interim interim order should be made staying the authorization pending the hearing of the motion.
[4] Given the tight timelines required, a judge from outside the Northwest Region will be assigned to hear this motion. The file is not to be transferred to the Toronto region. The file will remain as a Thunder Bay Divisional Court matter.
[5] Counsel have agreed to the following timetable:
Motion to be heard March 7, 2024, via zoom three hours required.
Responding material to be delivered by February 27.
Cross examinations of the representative of Cat Lake to be completed on February 29.
Cross-examinations of representatives of respondents to be completed by March 1.
Cat Lake to deliver factum by March 4.
Responding parties to deliver factums by March 6.
[6] With respect to the request for an interim interim order staying the authorization, I appreciate that I am making this decision on a limited record although counsel for the First Nation and FMG provided very helpful submissions via the aid memoirs submitted yesterday and today. FMG has represented that the statements made in its written submissions are accurate and will be included in its responding motion material. I also had the benefit of receiving very helpful submissions from counsel from all parties including the Ministry.
The test to be applied:
[7] FMG argues that the higher standard, “strong prima facie case”, applies because the result of the stay will, in effect, amount to a final determination of the judicial review.
[8] I disagree. Based on the material before me, the effect of a stay is to delay the construction of the road and not to prevent it. I note the arguments made by FMG that the road is essential for “winter supply” but also note that other methods of “winter supply” have been utilized in the past.
Serious issue to be tried:
[9] The obligation to consult First Nations is an important obligation. At issue here are the constitutional rights of Cat Lake First Nation. This is a serious issue for judicial review.
Irreparable harm:
[10] Cat Lake First Nation submits that the proposed winter road would upset its members’ exercise of their Aboriginal Rights, upset caribou migration and calving, disturb traditional harvesting practices, and risk the destruction of cultural and burial sites. Cat Lake First Nation seeks to have the authorization deferred pending an Anishinaabe Lead Impact Assessment. The Ministry takes no position on irreparable harm. To date, 6 km of this 18 km “road” has been constructed. FMG submits that irreparable harm is, at this point, speculative and that it is bound by other statutes to take care that wildlife, culturally significant sites, and burial sites will be protected. FMG also argues that the community and some of its members wish a winter road as well, thereby negating the irreparable harm argument to some extent. FMG acknowledges that the road sought by the First Nation would traverse a different route.
[11] I recognize that the record before me is limited. However, I am satisfied that irreparable harm to this First Nations’ constitutional rights are made out.
Balance of convenience:
[12] Cat Lake First Nation is a remote fly in community with approximately 600 residents. The mining exploration site houses on average 34 workers and up to 40 workers at times. FMG asserts that, if construction is delayed, it will not be able to resupply the exploration camp. However, both the First Nation and the exploration site relied upon winter roads and air transport for supply in the past. The Ministry takes no position on balance of convenience.
[13] I find that the balance of convenience favours the First Nation.
Undertaking as to damages:
[14] Courts have waived the requirement of an undertaking in situations of public interest: see Wahgoshig First Nation v. Ontario, 2011 ONSC 7708, at para. 77.
[15] This is a situation of public interest. I waive the requirement of an undertaking and an interim interim stay will issue pending the hearing of the motion on March 7, 2024.
[16] In the circumstances, given the importance of this issue I have been authorized to grant an earlier date for the hearing of the motion of March 4, 2024, and if the parties wish to expedite the hearing further, that day would be available and the parties would be required to adjust their litigation timetable. Counsel are advised to contact the Thunder Bay trial coordinator no later than Monday, February 26 at 4 PM to advise whether the earlier hearing date is sought.
[17] Court Services is directed to create a CaseLines bundle for this file and this motion.
“Originally signed by”
The Hon. R.S.J. W.D. Newton
DATE: February 23, 2023
CITATION: Cat Lake First Nation v. First Mining Gold Corporation et al, 2024 ONSC 1163
COURT FILE NO.: DC-24-0003-JR
DATE: 2024-02-23
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Cat Lake First Nation – Applicant / Moving Party
v.
First Mining Gold Corporation and
The Ministry of Natural Resources and Forestry - Respondents / Respondents
HEARD: February 23, 2024
BEFORE: Regional Senior Justice D. Newton
COUNSEL: D. Goudge for the Applicant / Moving Party
J. Picone for Respondent First Mining Gold Corporation
T. Lipton for the Respondent Ministry of the Attorney General
ENDORSEMENT
R.S.J. Newton
DATE: February 23, 2023