Northern Superior Resources Inc. v. Ontario, 2016 ONSC 3161

COURT FILE NO.: CV-13-00491444-00

DATE: 20160525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NORTHERN SUPERIOR RESOURCES INC.

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

R. Cuervo-Lorens and S. Gaudreau, for the Plaintiff

R. Carr, R. Ogden and Stephanie Figliomeni, for the Defendant

HEARD: Oct. 6-9, 13, 15, 19-23, 26, 28-29, Nov. 9-10, 12-13, 2015

LEDERER J.:

[1] The Mining Act[^1] is the provincial legislation that governs and regulates prospecting, mineral exploration and mine development in Ontario. Its stated purpose, which is to support development of mineral resources, includes the recognition of existing aboriginal and treaty rights and, in particular, the duty to consult:

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.[^2]

[2] At the outset, this case was said to raise an issue that would stretch the boundaries of this directive and the duties that accompany it. It was suggested that the duty to consult inures to the benefit, not only of the Aboriginal communities potentially affected by a mining program, but also to the benefit of the mining company that has recorded the claims and obtained the right to prospect and explore. Sometimes, cases are not as difficult or complicated as they may, at first, be made to appear.

[3] The plaintiff, Northern Superior Resources Inc. (hereinafter, “Northern Superior”), is a junior mining company. It does not actively mine minerals. Rather, it explores, finds resources, identifies their prospective value and sells them to companies that develop the resource and operate the mines from which the minerals are extracted. The plaintiff is the holder of certain mining claims. The three groups of claims are located in the Red Lake Mining Division, approximately 740 kilometers northwest of Thunder Bay. During the course of the trial, these claims were identified as, and were associated with, Rapson Bay, Meston Lake and Thorne Lake.

[4] From June 2002 to 2005, Northern Superior (at the time, called Superior Diamonds) conducted what must have been preliminary exploration for diamonds in Northwest Ontario. In June 2005, it determined to focus on that area. It may be that these initial efforts were directed at locating diamonds but, as explained by the President and Chief Executive Officer of the company, this work included the possibility of locating other minerals. He referred to it as an “holistic approach”. He said: “We gather dirt and look for all indicators to all possible resources.” In 2005, the company staked claims in the area of Thorne Lake. This was seen as a “highly prospective” area for gold mining. Taking into account earlier reports dealing with an area to the east, the claims were taken as a confirmed possibility of an important gold find. Over 2006 and 2007, the company staked further claims at Meston Lake and Rapson Bay. Applications were made and the claims recorded. The holder of such claims obtains the right to prospect and explore for minerals.[^3]

[5] Over the next years, Northern Superior continued its exploration and analysis of the potential for these claims to produce a commercially-viable resource, one that could be sold and ultimately utilized as an operating mine. Northern Superior undertook more surveying. The results were good. In 2008, the markets were not. Northern Superior needed a partner to invest in its study of the area. International Nickel Ventures Corporation had money at hand. As invested, these funds would “flow through” and not be subject to taxes that would otherwise be owed. The two companies entered into an option agreement, dated May 27, 2009. In exchange for $1.5 million, to be delivered over four years ($500,000 by the “Effective date as defined in the agreement and the remaining $1 million by its fourth anniversary), International Nickel Ventures Corporation received a 50% interest in the Thorne Lake project (with an option for a further 10%). This allowed for core drilling into the bedrock.

[6] Prior to 2009, there was no regulatory authority under the then-existing provisions of the Mining Act which compelled engagement with Aboriginal communities. Even so, before staking its claims, Northern Superior was in contact with Sachigo Lake First Nation. It had hired an elder to assist in its work. In 2005, Northern Superior (still called Superior Diamonds) entered into a “Letter of Agreement”[^4] which spelled out the arrangements made for a “short term drill program,” in the Ellard Lake area, to run from “August 1^st^ to August 28^th,^ 2005”. Ellard Lake is not among the claims with which this action is concerned. It is to the north of Thorne Lake and is among some small areas investigated by Northern Superior (Superior Diamonds) in advance of staking the claims at issue in this case. It provides an indication that, at the outset, Northern Superior and Sachigo Lake First Nations co-operated to their mutual benefit. In return for the acceptance by the First Nation of the drilling program, Northern Superior (Superior Diamonds), among other things, hired members of the First Nation for specific identified purposes, recognized the need to have left the area within two to three weeks of the Sachigo Lake moose hunting season, rented a camp from the First Nation and undertook to take up as many local goods and services as it was reasonably able to do, including grocery supplies and fuel.

[7] In 2007, the Ministry of Northern Development and Mines released a discussion paper and began a “collaborative engagement process” directed to developing an improved process of consultation with First Nations “that worked for everyone”.

[8] In 2008, Northern Superior and Sachigo Lake First Nation entered into another “Letter of Agreement”. This one covered a period of approximately two weeks (October 1, 2008 to October 14, 2008) to be used for “claim staking and overburden sampling” in the Ellard Lake area/Rapson Bay area[^5]. In this case, “the Ellard Lake area referred to the “Ellard Lake gold mineral properties”, which included Thorne Lake. The “Rapson Bay area” referred to the actual Rapson Bay and not the whole claim area identified by that name. This agreement was somewhat more sophisticated, in that it included the salaries to be paid to some of the First Nation members to be hired by Northern Superior and the rental fee for the use of the camp facility. The agreement contained an “entire agreement clause” Again, the company and the First Nation were able to work together.

[9] Beginning in 2009, in furtherance of its desire for a better means of consultation, the Ministry initiated a “transitional approach” to consultation with First Nation communities and the “minerals sector”. From and after 2009, on each occasion that Northern Superior recorded a mining claim, it received a letter from the Ministry of Northern Development and Mines advising of the First Nations that should be contacted. The first letters were part of the transitional approach. Each one provided the contact information for the First Nation communities located in the area of the mining claim. At the same time, the First Nation communities received similar notification. They were told that claims had been recorded within their traditional territories, the identity of the party that had recorded the claim, together with its contact information. The purpose of these letters was said, by representatives of the Crown, to be to encourage engagement with that community and the development of a working relationship between the mining company and First Nations as early in the process of exploration and mine development as possible. Northern Superior received letters in respect of each of the three areas of claim that were at issue in this trial.[^6] As a result, Northern Superior contacted Sachigo Lake First Nation. Other First Nations were referred to, but Sachigo Lake was the only one contacted by Northern Superior. Sachigo Lake First Nation asked or offered to be the default contact between Northern Superior and First Nations. Northern Superior received and accepted the assurances of Sachigo Lake First Nation that it would discuss any issues that arose concerning overlapping claims in the area. In particular, Kitchenuhmaykoosib Inninuwug First Nation approached Northern Superior in 2009. The President and Chief Executive Officer of Northern Superior, in company with its Director of Exploration, met with representatives of the Kitchenuhmaykoosib Inninuwug First Nation. Its representatives accepted that Northern Superior was working well with Sachigo Lake First Nation. The Kitchenuhmaykoosib Inninuwug First Nation had concerns. They did not want any public statement made to the media suggesting that a deal had been made with Northern Superior and they wanted assurance that there would be no more staking of claims east of Thorne Lake. (I will return to this later in these reasons. For the moment, I note only that from this point on, if not earlier, Northern Superior was aware that the Kitchenuhmaykoosib Inninuwug First Nation had concerns for the lands east of Thorne Lake.) As Northern Superior understood it, with the assurance from Sachigo Lake First Nation, the Kitchenuhmaykoosib Inninuwug First Nation was content. Northern Superior was confident that it could proceed with exploration. It was on this basis that it entered into the option agreement with International Nickel Ventures Corporation.

[10] Northern Superior remained optimistic. With the 2009 results in hand, it wished to proceed with further exploration.

[11] By 2011, the Mining Act had been amended. The form of the notification letters was changed. Even so, it noted that the Ministry of Northern Development and Mines was “continuing to take a transitional approach”. On September 29, 2011 and on December 22, 2011, new form versions of the letter were sent to Northern Superior[^7]. The President and Chief Executive Officer testified that, as of 2011, no further work beyond that done in 2009 had been undertaken with respect to Thorne Lake. International Nickel Ventures Corporation had reconsidered its business strategy. It determined to change from an early exploration company to one associated with the development of established resources. On October 3, 2011, Northern Superior and International Nickel Ventures Corporation (by then, called INV Metals Inc.) entered into a “termination agreement”.[^8] For $500,000 and 750,000 “common shares in the capital of [Northern Superior]”[^9], the Option Agreement was terminated and the interest that had been acquired by International Nickel Ventures Corporation returned to Northern Superior.

[12] The President and Chief Executive Officer testified that, in examining how it should proceed, Northern Superior determined that it needed “a new story.” I understood this to mean that, without further work, any interest in the market place occasioned by the positive results in Thorne Lake would have diminished; it would have gone stale. Northern Superior needed something fresh to rekindle market interest and awareness. Northern Superior decided on an aggressive exploration plan for Meston Lake and Rapson Bay for the 2011 season. It was comfortable in its relations with Sachigo Lake First Nation and with Kitchenuhmaykoosib Inninuwug First Nation. It entered into a further “Letter of Agreement” with Sachigo Lake First Nation. This one began:

This Agreement sets out the Terms and Conditions under which Sachigo Lake First Nation (Sachigo Lake) and Northern Superior Resources will work together to build a trusting and mutually beneficial relationship.[^10]

[13] The Agreement was said to be “effective from 2011-02-28 to 2011-12-31”. The staking was to start on or about March 8, 2011 and to continue through to the start of the Traditional Spring Hunt on or about April 15, 2011. This time it was recognized that the staking program might not be finished in time, in which case it was to be completed after the Spring Hunt in May.

[14] At the conclusion of that year, when the work was complete, Northern Superior was excited about Rapson Bay. More work was needed on Meston Lake. On January 11, 2012, in a press release[^11], Northern Superior advised of the positive results of the work that had been done:

Northern Superior Resources Inc. (‘Northern’ or the ‘Company’) is pleased to announce that it has intersected a variably sheared, mineralized porphyry system on its 100% owned, Rapson Bay property in Northwestern Ontario. The mineralization intersected in drill hole WB-11-008C consists of three mineralized zones....

[15] The numbers were said to be better than average for systems of this kind. These were good results.

[16] The press release went on to observe that:

This program was completed with the cooperation and support of Sachigo Lake First Nation.[^12]

[17] As will become apparent, no more work was done. The relationship between Northern Superior and Sachigo Lake First Nation broke down. It is the position of Northern Superior that it was owed a duty by the Crown, that the breakdown was caused by that duty being breached and that it should be compensated by the Crown for the resulting loss. I raise this now only to point out that, by the time those who assessed the loss became involved, the enthusiasm for the prospect of finding a marketable resource on these claims had diminished considerably. The opportunity was described as low to moderate. The evidence indicated that, by its nature, the sort of work undertaken by Northern Superior is risky. It is rare that exploration results in an operating mine. Most often, exploration fails. It is on the infrequent occasion that a significant resource is found that the payoff comes.

[18] During the course of the preparations for the 2012 season, what had seemed like a solid and constructive relationship between Northern Superior and Sachigo Lake First Nation became frayed at the edges, deteriorated and fell apart. Northern Superior was concerned about the invoicing practices of Sachigo Lake First Nation. It wanted proper invoices and was unhappy when, as it perceived it, the First Nation was demanding payment in advance of delivering the requisite invoice. Sachigo Lake First Nation apparently suggested that, if it was not paid, it would hold a Northern Superior official.[^13]

[19] Northern Superior was looking to continue its investigations in the spring of 2012. To this time, Northern Superior and Sachigo Lake First Nation had successfully accommodated the concerns each of the other. The President and Chief Executive Officer had negotiated each of the “Letter Agreements” with the council and Chief of the First Nation. A meeting was proposed by Northern Superior to take place on November 29, 2011.

[20] This was preceded by a letter, dated November 16, 2011, from Sachigo Lake First Nation to the President and Chief Executive Officer of Northern Superior.[^14] The letter was signed by the Chief and four members of the First Nation’s council. It expressed the concern that, in the course of the preceding season, Northern Superior had acted in breach of the Letter Agreement that had been signed. The company had carried out a “drilling program” that was “not one of the proposed exploration activities” covered by the agreement. The letter expressed the expectation that, consistent with what had been agreed to, Northern Superior “will now enter into a separate negotiated Agreement... for the drilling operations that occurred within our traditional territory this fall”. The new fragility in the relationship between the parties was demonstrated by the last substantive paragraph:

In order to continue to work Northern Superior Resources [sic] we need to be assured that NSR will abide by the terms and conditions of any Agreement we enter into and will continue to work towards building a trusting and mutually beneficial relations [sic] with Sachigo Lake First Nation.

[21] This letter confounded the principals of Northern Superior. The Chief had been flown over the drill site which had been blessed by an elder of the First Nation. The President and Chief Executive Officer could not understand why, after the drilling program had been completed, Sachigo First Nation was asking for an agreement. He speculated that the Chief was embarrassed by the failure of the First Nation to get paid as a result of late delivery of an invoice dealing with aviation fuel.

[22] A second letter followed two days later (November 18, 2011). It made clear the depth of the concern. In its entirety, the letter said:

It has come to our attention that Glen McBride, an employee of Northern Superior Resources Inc. staked and recorded twenty-four (24) claim units in the Francois Lake and Winters Lake area. This claim staking work was conducted within our Traditional Territory in July without our prior knowledge or consent.

Sachiago Lake First Nation is disappointed, that after working in the spirit of trust and cooperation with NSR over the past few years, that we were not informed that additional geophysical work would be taking place within our traditional territory.

At issue is the lack of respect shown by Northern Superior Resources Inc. towards our Community and towards our Aboriginal and Treaty Rights.

Sachiago Lake First Nation is concerned that with significant challenges that occurred during this summer’s exploration program and that continue to take place in the administration of the terms and conditions of our Letter of Agreement have now affected our working relationship.

We will take some time to consider, whether it remains in the best interest of Sachigo Lake First Nation to continue to cooperate with Northern Superior Resources on any future exploration programs conducted within our Traditional Territory.

In response to the challenges, there cannot be any commitment to the meeting date as proposed by Northern Superior Resources for Tuesday, November 29, 2011 in the Community of Sachigo Lake First Nation, at this time.[^15]

[23] The Chief Geologist for Northern Superior expressed his frustration in an e-mail to the President and Chief Executive Officer:

…this really frustrates me as I was open and clear about all our ongoing project work and I had multiple guys from the community involved in the staking and geophysics... They should look at the timesheets as these activities are recorded on the FN invoices!! Each time I visited the community I had maps of the project areas and I had clearly highlighted what we were doing and where the activities were taking place. In addition we had elders out multiple times through the summer reviewing our work.

I really don’t understand the motivation for these letters??[^16]

[24] Northern Superior responded in a letter, dated November 24, 2011. It started off in a conciliatory fashion:

Having worked with Northern Superior since 2005, you must know that we have the utmost respect for yourselves, your community and your land. We have always worked towards the benefit of the community, looking for ways to work with you to provide opportunity for your people. I have always believed that our efforts would someday bring tremendous benefits to your community. It is so disappointing that when we are now so close to success, we find ourselves at this cross roads.

[25] It then got to the point:

After discussing the situation with Don, Casey Hetman, Scott Parsons and Greg Stott, I find it a bit of a stretch for you to claim that you were unaware of the additional staking, ground geophysics and drilling. Don sat down with you and council members in June and presented the staking and ground geophysical programs to you in a PowerPoint, copies of which he left with you and council. We hired a number of community members and two elders who were directly involved with these programs. In fact, when I visited the Lodge in August, we shared with you the results of the ground geophysics program. No one at that time expressed any concern to me about staking or ground geophysics.

With regard to the drilling, I reviewed all the correspondence that Casey had sent directly to you on this matter. It is very clear from these e-mails, sent to you over a month before we even started drilling, that we were planning to drill. Again, elders were brought to site to approve drill-hole locations, community members were hired to support the program, there were discussions with you directly regarding aircraft requirements to bring the drill to site. Casey even flew you in the helicopter over the drill areas where we planned to drill. Timing of the drill program, community staffing requirements to support the program, extend the use of the Lodge, and avoidance of the Fall hunt period were all discussed.

Regarding the invoicing, I am deeply insulted that you held the drill in lieu of payment. I have never failed to pay an invoice, and you had absolutely no grounds to justify your actions. The invoices involved had only just been received. We have the right, and should expect, the opportunity to have some time to process those invoices. The standard timeframe is payment within 30 days. That we had to turn a Hawker aircraft back to Pickle Lake and to pay the drill company standby time is extremely disrespectful to the Company and its Shareholders. To compound the problem, after I had specifically asked Alvin in front of you and your council over the phone to provide invoices with the proper supporting paperwork, Alvin submitted the four invoices without the proper supporting paperwork.

So, I am confused. That with all this information provided to you and your council well in advance of these additional programs being initiated, the hiring of elders, community members and the use of the Community’s businesses and infrastructure, that you would now express annoyance that we did not inform you of these additional programs and accuse us of disrespecting yourselves and your land.

[26] The letter returned to its initial tone:

Chief Tait, there is clearly a communication issue here. I believe that given our successful history of working through issues, that these current issues can be resolved and we can move forward, stronger for the experience. As stated earlier, I believe that after years of exploring and working together with Sachigo Lake First Nation, Northern Superior is very close to discovery, a discovery that can only benefit the Community of Sachigo Lake.

[27] The letter ended by confirming that there was little point in continuing with the proposed meeting:

That being stated, from the tone and content of your two letters, I quite frankly do not feel comfortable at this point in time visiting your community on the 29^th^ November. Instead, I propose we leave this meeting until early in the new year.[^17]

[28] The parties did meet, in Toronto, during March 2012, at a conference held by the Prospectors and Developers Association of Canada. They discussed the 2012 exploration program and the intention to reactivate Thorne Lake. In evidence, the President and Chief Executive Officer indicated that, at the meeting, the Chief supported the proposed program. The Chief wanted representatives of Northern Superior to speak to the Council. That meeting took place in the late spring of 2012. It was described, in testimony, as a “good meeting”. The Council and Chief were enthusiastic about the re-engagement at Thorne Lake. The company understood that the parties would proceed, generally, with the same type of agreement used in the past.

[29] The support of Sachigo Lake First Nation for the continuation of exploration was confirmed in a letter to Northern Superior, dated March 20, 2012. The First Nation sought confirmation that the budget was approved and assurance that the project work would go ahead. It wanted to be sure that, among other things, it engaged competent personnel and improved its organizational efficiencies to support camp management and servicing logistics. It wanted to be prepared “to provide the required exploration services”. The letter concluded by expressing understanding for “the importance of working together with NSR to build a mutually successful business relationship and we look forward to working with NSR again this summer”.[^18]

[30] Northern Superior provided the confirmation in a letter, dated March 26, 2012.[^19] It seemed that fences were mended. The parties were preparing to proceed. The rejuvenated goodwill between them did not last for long.

[31] Sachigo Lake First Nation delivered a draft “Letter Agreement”, dated May 29, 2012.[^20] It was, in many respects, similar to its predecessors but included two provisions which were of concern to Northern Superior. It added a new fee for “Administration” and “Band Burden” to be valued at 24% of the costs to Northern Superior of the remainder of the agreement and required that the company include, among the services to be provided by Sachigo Lake First Nation, the costs and use of a Beaver aircraft owned by the First Nation. The agreement required that Northern Superior provide $1,600 per day as a standby fee for the aircraft with additional airtime to be billed at $7.50 per mile. These terms were not acceptable to Northern Superior.

[32] On June 4, 2012, Northern Superior wrote to Sachigo Lake First Nation and expressed its concerns. The Beaver aircraft was not capable of moving the anticipated load (a drill core that had been left at Rapson Bay) in a safe and efficient manner. It would “add considerable unplanned cost and risk to the exploration program”. The standby fee was of concern because, in the previous year, this had turned out to be a significant cost as a result of “the many days [the plane] could not fly due to unsafe conditions at the Sachigo dock”. The 24% “Administration Fee and Band Burden Fee” was new to these agreements and “extremely high”. An explanation was asked for.[^21]

[33] A second draft of the “Letter Agreement” (June 5, 2012) was delivered by Sachigo Lake First Nation. The terms dealing with the use of the Beaver aircraft were unchanged. The “Administration Fee and Band Burden Fee” was reduced to 20% and labelled solely as an “Administration Fee”.[^22]

[34] Again, Northern Superior wrote to Sachigo Lake First Nation, this time on June 6, 2012. It indicated its dissatisfaction with the terms dealing with the aircraft and the administration fee. Given the limited time-frame for the exploration program (10 days), the company could not afford the risk that the Beaver aircraft would be unable to transport the drill core. Northern Superior could not “afford the risk of stand-by costs”. The “Administration Fee” was too high. The company offered to pay $4,000.[^23]

[35] Sachigo Lake First Nation wrote to Northern Superior two days later, on June 8, 2012. The letter indicates that, over five years, the company and the First Nation had a positive relationship which provided the community with some economic benefit. However, as Sachigo Lake First Nation saw it, over the preceding two years, a different approach had been taken and caused the First Nation to question the “trust relationship”. It insisted that the second draft of the “Letter Agreement” expressed the terms under which Sachigo Lake First Nation was prepared to agree to the exploration activities proposed for the upcoming season. This correspondence ended with the promise that, if an agreement was not entered into by June 11, 2012, “…this will be the last time we will enter into any Exploration Agreement for work within our Traditional Territory with Northern Superior Resources”.[^24]

[36] Northern Superior responded in a letter, dated June 22, 2012, which is to say, 11 days after the drop dead date referred to by Sachigo Lake First Nation. This letter reviews the cost and risk of exploration, the responsibility of the company to its investors, its dedication to working with First Nations and its mistaken understanding that it had the support and respect of Sachigo Lake First Nation. It rejected the “arbitrary imposition” of the new fee and the requirement that Northern Superior utilize an inefficient aircraft. The letter expressed the concern that these conditions would drive the costs to an unacceptable level. It repeated the view that this exploration could be close to paying off all the stakeholders, including Sachigo Lake First Nation, and indicated that the company was “prepared to listen” when the First Nation was ready to discuss a reasonable and fair engagement. In the meantime, Northern Superior “will further our exploration efforts in an area where the risks that we take are understood, appreciated, respected by the local community and not continually being negotiated.”[^25] In effect, this was the end of the working relationship between Northern Superior and Sachigo Lake First Nation.

[37] On June 26, 2012, Sachigo Lake First Nation wrote that the exploration activity proposed by Northern Superior was no longer in the best interests of the community and indicated that it expected to be paid for its expenses associated with its preparation for the exploration program that did not take place.[^26] These costs were not paid.

[38] In order to maintain recorded claims, the Mining Act requires continued investment in them. The Act does allow, in “special circumstances,” for “exclusion of time” orders. With such an order in place, claims will be left undisturbed despite no investment being made. On July 5, 2012, relying on the actions of Sachigo Lake First Nation, Northern Superior applied for such an order confirming that it had determined it could not proceed. The order was requested “until such time as matters with SLFN are resolved and the Company is allowed to recommence exploration activities.”[^27] The order was granted[^28] and, in time, replaced by an order of the Mining and Lands Commissioner.[^29] At present, the claims lie in abeyance under that order.

[39] It is as a result of the collapse of its relationship with Sachigo Lake First Nation that Northern Superior brought this action against Her Majesty the Queen in Right of Ontario. Northern Superior asserts that Ontario owed it a duty, that the failure of its relationship with Sachigo Lake First Nation was the result of a breach of that duty and that it should be compensated accordingly. I shall have more to say about the immediate participation of the Province of Ontario later in these reasons. For the moment, I return to the observation made at the outset. The answer is not difficult and it is not complicated. There is no duty the law provides that can be expanded such that the benefits can be relied on by Northern Superior.

[40] Counsel on behalf of the Crown dealt with the presence (or absence) of a duty by applying the test found in the Anns v Merton London Borough Council.[^30]

[41] In that case, the House of Lords (Lord Wilberforce) outlined an analytical approach to determining if there was a duty of care and whether, if sufficient proximity was demonstrated, the prima facie duty so established, never-the-less, should not be applied or should be limited in its application:

…[I]n order to establish that a duty of care arises in a particular situation, it is not necessary to bring the facts of that situation within those of previous situations in which a duty of care has been held to exist. Rather the question has to be approached in two stages. First one has to ask whether, as between the alleged wrongdoer and the person who has suffered damage there is a sufficient relationship of proximity or neighbourhood such that, in the reasonable contemplation of the former, carelessness on his part may be likely to cause damage to the latter - in which case a prima facie duty of care arises. Secondly, if the first question is answered affirmatively, it is necessary to consider whether there are any considerations which ought to negative, or to reduce or limit the scope of the duty, or the class of person to whom it is owed or the damages to which a breach of it may give rise.[^31]

[42] This is an approach that is concerned with assessing the duty of care in negligence or tort law. It considers the relationship of parties or actors in our society and population. In the normal course, it is possible that the relationship between the Crown and a mining company could be susceptible to such an analysis. Is it in this situation?

[43] The immediate reliance on the application of the test from Anns v Merton London Borough Council ignores the fundamental conundrum of this case. While no First Nation was a party and no First Nation member or representative appeared or gave evidence, the nature of their interest is central to the issues raised. The place of First Nations in this relationship does not begin with the law of negligence. Their place is founded in our constitution. It is these constitutional protections on which Northern Superior relies. It submitted that the Crown failed in its constitutional responsibilities in that those duties benefit not just First Nations but also to third parties whose interests may be impacted by that failure.

[44] The Mining Act recognizes and codifies the obligation to consult with interested First Nations in respect to the identification and development of mineral resources. As the Mining Act notes, this responsibility is not a requirement that is merely imposed by the statute. Rather, it is the affirmation of our collective recognition, found in the Constitution Act, 1982, of the standing of First Nations in our society (see: para. [1], above). Section 35(1) of the Constitution Act, 1982, to which s. 2 of the Mining Act refers, states, under the heading, “Rights of the Aboriginal Peoples of Canada”:

The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.

[45] The Constitution Act, 1982 does not refer to the duty to consult. The case law has identified this as a means by which “aboriginal and treaty rights” are recognized and responded to. The seminal case is Haida Nation v. British Columbia.[^32] In that case, British Columbia exercised its legal title to the land in question and granted the right to harvest forests that were located there. The Haida people claimed title to the land and objected to the harvesting of the forests. The fact that the claim to title had yet to be proved did not negate the duty to consult:

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.[^33]

[Emphasis added]

[46] The honour of the Crown must be recognized if we are to achieve the goal of reconciliation:

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’.[^34]

[47] The honour of the Crown has a high purpose and imposes a solemn obligation on those who act in the name of the Crown:

The ultimate purpose of the honour of the Crown is the reconciliation of pre-existing Aboriginal societies with the assertion of Crown sovereignty. As stated in Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at para. 24:

The duty of honour derives from the Crown’s assertion of sovereignty in the face of prior Aboriginal occupation. It has been enshrined in s. 35(1) of the Constitution Act, 1982 which recognizes and affirms existing Aboriginal rights and titles. Section 35(1) has, as one of its purposes, negotiation of just settlement of Aboriginal claims. In all its dealings with Aboriginal peoples, the Crown must act honourably, in accordance with its historical and future relationship with the Aboriginal peoples in question.[^35]

[Emphasis added]

[48] The honour of the Crown stands apart from the law of negligence:

This duty has arisen largely in the treaty context, where the Crown’s honour is pledged to diligently carrying out its promises: Mikisew Cree First Nation, at para. 51; Little Salmon, at para. 12; see also Haida Nation, at para. 19. In its most basic iteration, the law assumes that the Crown always intends to fulfill its solemn promises, including constitutional obligations: Badger; Haida Nation, at para. 20. At a minimum, sharp dealing is not permitted: Badger. Or, as this Court put it in Mikisew Cree First Nation, ‘the honour of the Crown [is] pledged to the fulfilment of its obligations to the Indians’: para. 51. But the duty goes further: if the honour of the Crown is pledged to the fulfillment of its obligations, it follows then that the honour of the Crown requires the Crown to endeavour to ensure its obligations are fulfilled. Thus, in review proceedings under the James Bay and Northern Québec Agreement, the participants are expected to ‘carry out their work with due diligence’: Quebec (Attorney General) v. Moses, 2010 SCC 17, [2010] 1 S.C.R. 557, at para. 23. As stated by Binnie J. in Little Salmon, at para. 12: ‘It is up to the parties, when treaty issues arise, to act diligently to advance their respective interests. Good government requires that decisions be taken in a timely way.’ This duty applies whether the obligation arises in a treaty, as in the precedents outlined above, or in the Constitution, as here.[^36]

[49] The honour of the Crown may, but does not always, manifest itself as a fiduciary duty:

The relationship between the Métis and the Crown, viewed generally, is fiduciary in nature. However, not all dealings between parties in a fiduciary relationship are governed by fiduciary obligations.

In the Aboriginal context, a fiduciary duty may arise as a result of the ‘Crown [assuming] discretionary control over specific Aboriginal interests’: ... The focus is on the particular interest that is the subject-matter of the dispute: ... The content of the Crown’s fiduciary duty towards Aboriginal peoples varies with the nature and importance of the interest sought to be protected...[^37]

[50] This requires the Crown to act in the best interest of the First Nation when exercising discretionary control over specific First Nation interests. In this case, the land in question is subject to Treaty 9. In exchange for Aboriginal title and Aboriginal rights, the First Nations received reserves and certain harvesting rights. There are rights in respect of cultural sites, such as burial grounds, that have not been set down in treaty. To the extent that there are rights to be protected arising from the treaty (harvesting rights) or outside the treaty (respecting sites of cultural significance), the Crown acts as a fiduciary of the First Nation. The problem is that, in the absence of the First Nation, it is not possible to know what rights they perceive as being threatened, whether they are correct in the assertion of such rights or to appreciate the strength and substance on which the claim to those rights is based.

[51] In the event that the interest at issue is one that attracts constitutional protection that is accompanied by fiduciary responsibilities, there can be no duty owed by the Crown to Northern Superior. In such circumstances, the loyalty of the Crown is to the First Nation. It cannot be that the Crown would, at the same time, owe an independent duty to a mining company to work to protect its exploration rights in the face of a legitimate constitutional concern of a First Nation. The Crown would be in the untenable position of being required to serve two opposing masters, each insisting it can rely on one of two contradictory responsibilities. In such circumstances, it would not be a matter for tort law. The constitutional rights and concerns of the First Nation would govern.

[52] This is not to say that other concerns do not play a role:

…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. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

...Balance and compromise are inherent in the notion of reconciliation. Where accommodation is required in making decisions that may adversely affect as yet unproven Aboriginal rights and title claims, the Crown must balance Aboriginal concerns reasonably with the potential impact of the decision on the asserted right or title and with other societal interests.[^38]

[53] The need for balance is not the recognition of a legal right. It is an acknowledgment of the diverse interests in our society and the overall goal of reconciliation.

[54] This concern is made plain by the claims of Kitchenuhmaykoosib Inninuwug First Nation. This First Nation made broad claims over a large area of land. In 2000, it established a unilaterally-imposed “community moratorium” over that area. It was to stay in place until the “Treaty Land Entitlement Claim” was resolved. This was a claim by communities that were party to Treaty 9 that they had not received land (reserves) consistent with what was provided for in the treaty. The expressed view of Kitchenuhmaykoosib Inninuwug First Nation was that it had never surrendered its lands and resources. It sought recognition of its sovereignty and the restoration of lands that had been damaged.[^39] The extent of the claim by Kitchenuhmaykoosib Inninuwug First Nation increased. It overlapped with the areas of concern to Sachigo Lake First Nation. Kitchenuhmaykoosib Inninuwug First Nation was resolute. There was to be no development. This came to a head in the disagreement between another company, God’s Lake Resources, and Kitchenuhmaykoosib Inninuwug First Nation. God’s Lake Resources had staked and recorded mining claims to the east of Thorne Lake. The company was intent on moving forward with its exploration in the face of concerns that included “ground confrontation”.[^40]

[55] While the distinction was not drawn in the evidence, it seems clear that the claims as made by Kitchenuhmaykoosib Inninuwug First Nation were of a kind that could cause the honour of the Crown and an accompanying fiduciary duty to drive and define the role and responsibilities of Ontario in the dispute.[^41] The obligations associated with acting as a fiduciary are powerful:

At the heart of the fiduciary relationship lie the dual concepts of trust and loyalty. This is first and best illustrated by the fact that the fiduciary duties find their origin in the classic trust where one person, the fiduciary, holds property on behalf of another, the beneficiary. In order to protect the interests of the beneficiary, the express trustee is held to a stringent standard; the trustee is under a duty to act in a completely selfless manner for the sole benefit of the trust and its beneficiaries...to whom he owes ‘the utmost duty of loyalty’. ... And while the fiduciary relationship is no longer confined to the classic trustee-beneficiary relationship, the underlying requirements of complete trust and utmost loyalty have never varied.[^42]

[56] Simply put, as a fiduciary, Ontario would have been “under a duty to act for the benefit of, [Kitchenuhmaykoosib Inninuwug First Nation] on matters within the scope of the relationship:”[^43]

The critical feature of these relationships is that the fiduciary undertakes or agrees to act for or on behalf of or in the interests of another person in the exercise of a power or discretion which will affect the interests of that other person in a legal or practical sense.[^44]

[57] Section 35 of the Mining Act allows for the Minister of Northern Development and Mines to withdraw lands that are the property of the Crown from prospecting and staking.[^45] Ontario acted in response to the claims of Kitchenuhmaykoosib Inninuwug First Nation and to resolve the dispute between it and God’s Lake Resources by issuing an Order withdrawing lands in the vicinity of the First Nation from prospecting and mining.[^46] In preparing the Order, Ontario made attempts to facilitate conversations between God’s Lake Resources and the First Nation,[^47] without success.

[58] A “Withdrawal Order” cannot remove pre-existing rights.[^48] As a result, any existing mining lease or claim held by God’s Lake Resources was not affected by the Order. To deal with this aspect of the problem, Ontario agreed to pay the company $3.5 million in return for surrendering its lease and claims in the area.

[59] In issuing the “Withdrawal Order” and buying out God’s Lake Resources, Ontario acted in a fashion that was consistent with its constitutional responsibilities and a fiduciary obligation to Kitchenuhmaykoosib Inninuwug First Nation. The subtitle of the press release issued by the government to announce the buyout of God’s Lake Resources was “McGuinty Government Balances Industry and Aboriginal Interests”.[^49] The result may have been satisfactory to both sides, but the law does not impose a duty to find such a solution. Ontario’s fiduciary responsibilities of trust and loyalty to the First Nation do not allow for a corresponding duty to any company that holds mining rights which challenge the treaty or aboriginal rights of a First Nation. The underlying result was the preservation of whatever claim Kitchenuhmaykoosib Inninuwug First Nation had to rights in respect of the lands affected by the mining leases and claims of God’s Lake Resources.

[60] This was not the only example where Ontario acted to protect the claims being made by Kitchenuhmaykoosib Inninuwug First Nation. Platinex Inc., an exploration company, held leases on part of 200-square kilometres which were the subject of the “Treaty Land Entitlement” claim made by Kitchenuhmaykoosib Inninuwug First Nation. The company proposed to commence its investigations. The First Nation obtained an injunction, subject to the continuation of discussion between it and the company.[^50] There were several returns to court. In time, representatives of Kitchenuhmaykoosib Inninuwug First Nation were jailed for contempt of a court order by impeding or threatening to impede the access of Platinex Inc. to the property for the purpose of undertaking archeological pre-screening and the subsequent commencement of its drilling program.[^51] In the end, as a result of a settlement, Ontario took an assignment of the company’s rights. The claims of Kitchenuhmaykoosib Inninuwug First Nation remain, now unaffected by any interest of Platinex Inc.

[61] What if the claims made by the First Nations are subject to constitutional protection (the honour of the Crown) but not to a fiduciary duty on the part of the Crown? In Manitoba Métis Federation Inc. v. Canada (Attorney General)[^52], the Supreme Court of Canada considered a broad claim by members of the Métis community. The promise of land made to them at the time Manitoba entered into the Canadian federation, and confirmed in the Manitoba Act which made it a province, had not been fulfilled. The Court found that the honour of the Crown applied but that the relationship was not “governed by fiduciary obligations”. The words of the legislation did not establish that the Métis held a pre-existing, communal Aboriginal title. There was a finding by the trial judge that there was no communal, Aboriginal interest. Without such a communal interest, any claim to a fiduciary duty owed to the Métis at large, had to fail.[^53] This does not change anything. The honour of the Crown, separate from any fiduciary obligation, benefits First Nations in their relationship with the Crown. It does nothing for third parties such as Northern Superior.

[62] Interestingly, in preparing the “Withdrawal Order”, Ontario took into account the interest of Sachigo Lake First Nation in the claims of Northern Superior in the area of Thorne Lake. The line demarcating the boundary of the area to be withdrawn from prospecting and claims was amended such that the lands that were subject to the Thorne Lake mining claims of Northern Superior were not included.[^54] An e-mail internal to the Ministry of Northern Development and Mines noted:

…I had to review a few specific spots on the map. KI has never ‘claimed’ or asserted that any of the claims on the west side of their territory were in KI territory. So I wanted to make sure that any of those claims fell outside of the KI boundary. Can you imagine the hell we’d get from Sachigo and the company if we put the NSuperior claims inside the KI boundary? If KI doesn’t like it, I’ll tell them the same thing again I’ve told them previously, talk to Sachigo.[^55]

[63] The government was acting to protect the interests of another First Nation, this time Sachigo Lake First Nation. The First Nation had been working successfully with Northern Superior, over several years, in the latter’s exploration program. Again, the interests of the First Nation, as demonstrated by its positive relationship with Northern Superior, were protected. For its part, Northern Superior proposed that the duty to consult was breached by the issuance of the “Withdrawal Order”. The consultations or discussions that took place failed to acknowledge its concern for the lands to the east of the Thorne Lake claims. These lands were part of the area withdrawn from exploration by the Order. It should not be forgotten that Kitchenuhmaykoosib Inninuwug First Nation had made its concerns for this area known in its first discussions with Northern Superior in 2009 (see: para. [9], above). Northern Superior understood that the inclusion of this land in the withdrawal area would deny it the full benefit of the mineralization it was assessing at Thorne Lake. It could be expected that the mineralization would extend to the east into the withdrawal area. The upshot of the constitutional protection of the interests of First Nations, founded in the honour of the Crown, with or without an accompanying fiduciary duty, is that the duty to consult, which is an expression of the protection, is a responsibility owed to First Nations. It is not owed to third parties and provides no legally enforceable benefit to them.

[64] The idea of communal protection extends to the duty to consult. Counsel for the Crown referred to Behn v. Moulton Contracting Ltd.[^56] The Crown granted authorizations to Moulton Contracting to harvest timber. Individual members of a Fort Nelson First Nation (the Behns) erected a camp to block access to the logging sites. Moulton Contracting commenced a tort action. The Behns argued that the licences were void because they had been issued in breach of the constitutional duty to consult and because they violated community members’ treaty rights. The Supreme Court of Canada held that the duty to consult exists to protect the collective rights of Aboriginal peoples. The rights are “collective in nature”.[^57] Counsel for the Crown noted reasonably that, if there is no duty to consult individual members of the First Nation, as opposed to the community as a whole, such a duty cannot extend to third parties. The case demonstrates the narrow ambit of the duty to consult.

[65] In their final submissions, counsel for Northern Superior posited that the duty to consult had failed not just in respect of Sachigo Lake First Nation and Kitchenuhmaykoosib Inninuwug First Nation, but also the claim of Red Sucker First Nation (to which three of the notification letters sent to Northern Superior in 2011 referred[^58]) and to concerns in other parts of the province. There was reference to Nibinamik First Nation and to Neskantage First Nation. This is a broad allegation about the actions of Ontario generally, across a large expanse of the province. It does not translate into a justiciable complaint by Northern Superior to any remedy it seeks in this action or to any obligation due to it.

[66] In the absence of the extension of any constitutional responsibility in favour of Northern Superior, we are left with the direct and immediate relationship between the Crown and Northern Superior. There is no contractual relationship, nor was one asserted. There is nothing left but to examine the application of the test in Anns v Merton London Borough Council.

[67] The first step in the analytical approach set by that case reflects on the nature of the relationship between the parties: in this case, the Crown (Ontario) and Northern Superior. The analysis examines the proximity of the parties and the foreseeability of the harm or damage asserted (see: para. [41], above). In Taylor v. Canada (Attorney General)[^59], the plaintiff allegedly suffered catastrophic consequences from the insertion of an implant. She brought a proposed class action alleging that Health Canada was negligent in exercising its responsibilities under the Food and Drugs Act. [^60] It was alleged that Health Canada owed a duty of care to protect the class members from unsafe medical devices and that it had negligently failed to perform that duty. The Court of Appeal was asked to consider two questions: (1) what are the requirements in a statement of claim to establish sufficient proximity between the parties where the claim is brought against a governmental body for regulatory negligence; and, (2) did the amended statement of claim satisfy those requirements?

[68] In the particular circumstances, the Court found that the legislative scheme did not expressly or by implication create a private law duty of care. The case turned on the allegations of interaction between Health Canada and the plaintiff. There was no suggestion of any direct contact between them. Public statements by Health Canada that referred to its general powers and practices and the reliance of the plaintiff on them were insufficient, on their own, to demonstrate the required proximity. However, in that case, the pleadings alleged that Health Canada had repeatedly misrepresented the safety of the implants by wrongly representing that they had received a notice of compliance. It was said that when Health Canada became aware of the misrepresentation, it failed to correct it despite the knowledge that implants were being improperly imported and sold in Canada, were unsafe and caused serious harm to users. It was arguable that the misrepresentation, combined with the failure to correct it in the face of the knowledge of the serious and ongoing risk posed to a clearly definable and relatively small group of consumers, gave rise to a prima facie duty of care despite the fact that no specific representations were made to the plaintiff and there was no reliance, by the plaintiff, on any specific representation:

If the claim does not fall within an established or an analogous category, but the harm alleged was reasonably foreseeable, proximity becomes the focus of the first stage of the two-stage duty of care inquiry. Where the claim is advanced against a regulator, the proximity inquiry will focus initially on the applicable legislative scheme and, secondly, on the interactions, if any, between the regulator or governmental authority and the putative plaintiff.[^61]

[69] No submissions were made as to whether, in the circumstances of the case I am asked to decide, the harm caused was reasonably foreseeable. Given the outcome, I see no reason to delve into this on my own. I start with the legislative scheme. It “looms large” in the proximity inquiry. “[T]he question of whether a regulator should owe a private law duty of care to those individuals affected by its actions is largely a policy decision that fall squarely within the legislative bailiwick.”[^62] It follows that: “The legislative scheme must be examined at the outset of the duty of care inquiry. If that scheme expressly or by implication forecloses or imposes a private law duty of care, the duty of care inquiry need go no further. It is not for the court to contradict the terms of the legislative scheme.”[^63] In this case, the Mining Act sets what the holder obtains as a result of the staking and recording of a claim. Section 51(1) states:

Except as in this Act is otherwise provided, the holder of an unpatented mining claim has the right prior to any subsequent right to the user of the surface rights, except the right to sand, peat and gravel, for prospecting and the efficient exploration, development and operation of the mines, minerals and mining rights.

[Emphasis added]

[70] The Mining Act does provide otherwise. Section 51(2) states:

Despite subsection (1), where an application has been made under the Public Lands Act for the use of surface rights or for their disposition in whole or in part, or where the surface rights or portions of them are required for developing and operating a public highway, a renewable energy project, a power transmission line or a pipeline for oil, gas or water, or for another use that would benefit the public, the recorder may, if the claim holder does not consent to the proposed use or disposition,

(a) refer the matter to the Commissioner; or

(b) upon giving all interested persons at least 90 days’ notice of a hearing and after hearing any interested persons that appear, make an order on such terms and conditions as the recorder considers appropriate with respect to the surface rights.

[71] The Mining Act makes a point of describing rights not conferred by the recording of a mining claim. Section 50(1) states:

The staking or the filing of an application for or the recording of a mining claim, or the acquisition of any right or interest in a mining claim by any person or all or any of such acts, does not confer upon that person,

(a) any right, title, interest or claim in or to the mining claim other than the right to proceed as is in this Act provided to perform the prescribed assessment work or to obtain a lease from the Crown and, prior to the performance, filing and approval of the first prescribed unit of assessment work, the person is merely a licensee of the Crown and after that period and until he or she obtains a lease the person is a tenant at will of the Crown in respect of the mining claim; or

(b) any right to take, remove or otherwise dispose of any minerals found in, upon or under the mining claim.

[72] The rights obtained are limited. The Mining Act specifically limits any private law duty that could apply. Section 4(3) states under the heading, “Immunity for acts done in good faith”:

No action or other proceeding for damages shall be instituted against the Minister, the Deputy Minister or any officer or employee of the Ministry or anyone acting under the authority of the Minister or Deputy Minister for any act done in good faith in the execution or intended execution of the person’s duty or for any alleged neglect or default in the execution in good faith of the person’s duty.

[73] Accordingly, the Crown and those who act on its behalf may be liable in tort for their misconduct if there is a demonstration that the alleged neglect or default was executed in bad faith. There was no evidence of bad faith in the preparation of the withdrawal order or any other action taken on behalf of the Crown. Counsel for Northern Superior advised the court that any allegation to the contrary was not being pursued. This being so, there is no duty of care imposed by the legislative scheme, either directly or by implication.

[74] What about any interactions between the regulator or governmental authority and the plaintiff? Are they sufficient to raise the prospect of a duty of care owed by the Crown to Northern Superior?

[75] Cooper v. Hobart[^64] is another case which examined the potential for an action against a statutory regulator. The Registrar of Mortgage Brokers suspended the licence and froze the assets of a mortgage broker. Funds provided by investors had allegedly been used for unauthorized purposes. One of the investors sued and applied to have the action certified as a class action. The issue was whether the pleadings disclosed a cause of action. Ultimately, the Supreme Court of Canada determined that they did not. The Registrar did not owe a duty of care to the investors. The Court considered the parameters of proximity. Generally, the term describes a relationship that is “close and direct”:

Who then, in law is my neighbour? The answer seems to be – persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.[^65]

[Emphasis added]

[76] This goes beyond physical proximity and refers to the “circumstances of the relationship”:

The label ‘proximity’, as it was used by Lord Wilberforce in Anns, supra, was clearly intended to connote that the circumstances of the relationship inhering between the plaintiff and the defendant are of such a nature that the defendant may be said to be under an obligation to be mindful of the plaintiff’s legitimate interests in conducting his or her affairs.[^66]

[77] In the end, the inquiry depends on the facts of the particular case. It may involve an examination of the “expectations, representations, reliance, and the property or other interests involved”.[^67]

[78] As it turns out, the interaction between the representatives of the Crown and Northern Superior were limited. The Ministry of Northern Development and Mines delivered the notification letters in 2009 and in 2011. The first two (September 2, 2009 and April 2011) include the following offer:

If there are significant outstanding issues arising from your engagement process, staff from MNDMF are available to meet with the communities and claim holders to hear concerns and help facilitate reconciliation.[^68]

[79] This invitation was removed from the third and fourth notification letters (respectively, September 29, 2011 and December 22, 2011) made part of the record in the trial.[^69] Be that as it may, there was no direct contact between Ontario and Northern Superior concerning the relationship between the latter and any First Nation until July 5, 2012.[^70] To put this in context, it was on June 26, 2012 that Sachigo Lake First Nation wrote to Northern Superior advising that the relationship was at an end, indicating that the community expected to be compensated for the costs incurred in respect of the 10-day exploration program that had been anticipated for the 2012 season[^71] (see para. [37], above). The letter of July 5, 2012, by which Northern Superior applied for the “exclusion of time order” (see para. [38], above) allowing the claims to be maintained in the absence of immediate investment was the first direct interaction between the Crown and Northern Superior concerning these claims. This letter includes, for the first time, a review of the problems that had arisen between Northern Superior and Sachigo Lake First Nation. The letter did not ask for help or assistance. The letter did note that Northern Superior had been advised, by its legal counsel, to “…re-engage in negotiations when a reasonable arrangement had been presented to the Company by [Sachigo Lake First Nation]”.[^72]

[80] On September 6, 2012, the President and Chief Executive Officer of Northern Superior wrote to the Acting Assistant Deputy Minister.[^73] This letter refers to the “arbitrary and unreasonable demands” of Sachigo Lake First Nation. It is not a request for assistance and does not demonstrate the proximity requisite to a demonstration of a “duty of care”. This is a demand for compensation which presupposes the existence of such a duty:

The purpose of this letter is to inform the Government of Ontario of the difficulties Northern Superior faces and to assert that the Company’s claim for full compensation for all losses suffered or to be suffered as a result of the frustration of its legal right to access, explore and exploit the mineral claims in our Rapson Bay, Meston Lake, and Thorne Lake properties in Northwestern Ontario...[^74]

[81] There is nothing in any of this to demonstrate the direct and close interaction on which the presence of any duty of care could be founded. Northern Superior received the notification letters. Each of them accepted that the Crown had the ultimate responsibility for ensuring appropriate consultation, but advised that third-party proponents had an important role to play. Two of these letters pointed out that the third-party was in the best position to describe their plans and develop measures to prevent or diminish potential adverse effects and the other two noted that building a positive relationship with Aboriginal communities made good business sense and could help a proponent to address any potential issues at the outset.[^75] Northern Superior worked with Sachigo Lake First Nation and, for a period, achieved the balance to which the courts have referred without the participation or the assistance of the Crown. This was laudable and to the advantage of both parties. The fact that the association deteriorated does not allow Northern Superior to fall back and claim a duty of care was owed to it by the province. Up until the breakdown of the relationship, Ontario did not take part.

[82] Northern Superior says that it is the lack of interaction that is the marker of the duty of care and the failure to recognize it. In its submission, the notification letters and the instruction or advice they contained represents an improper delegation of the Crown’s duty to consult. Northern Superior and perhaps others who received these letters, were advised to carry out the consultation without instruction as to the nature of the duty to consult or the ramifications or responsibilities that explained that duty.

[83] The idea of an improper delegation has no role to play in this case. In Wahgoshig First Nation v. Ontario, the First Nation sought and obtained an injunction to prevent further exploration by a mining company.[^76] The order enjoined the exploration for a period of 120 days and required the company to consult with the First Nation. The company was granted leave to appeal.[^77] The motion judge had proceeded on the understanding that the company was subject to a duty to consult that had been delegated to it by Ontario. Could there be such a delegation? The judge on the motion for leave to appeal understood the conclusion of the motion judge to be based on a statement made in Haida Nation v. British Columbia:

…[T]he Crown may delegate procedural aspects of consultation to industry proponents seeking a particular development.[^78]

[84] The judge on the motion for leave went on to distinguish Haida Nation v. British Columbia from the decision he was considering:

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

There is no suggestion in Haida Nation, however, that, in the absence of legislated authority, the Crown can delegate a duty to consult to a third party in the sense of imposing an obligation on the third party by means of a purely administrative action unrelated to the exercise of a statutory power or the satisfaction of a condition of a permit or licence granted by the Crown.[^79]

[85] The judge on the motion for leave concluded that:

In particular, there is no suggestion that a duty to consult can be delegated in such a manner that the delegatee's breach will subject it to a private action for damages by the First Nation having the entitlement to a right of consultation and accommodation…[^80]

[86] In the circumstances, the judge hearing the motion for leave to appeal determined that it was important that the Court clarify the respective obligations of the Crown and mining companies operating in Ontario where the treaty or aboriginal rights of First Nations could be affected by exploration activities.[^81]

[87] The appeal came on before the Divisional Court. In the meantime, amendments to the Mining Act had come into force. These amendments resolved the issue. They required that holders of mining claims file exploration plans and apply for exploration permits before commencing their activities where First Nation interests may be involved.[^82] The Divisional Court found that the obligations and rights of the parties should be resolved with the new regulatory regime “in mind”, found the appeal to be moot and did not hear it.[^83]

[88] The confirmation, in this case, that there is no issue of an improper delegation springs from the findings in Haida v. British Columbia and the decision of the judge on the motion for leave to appeal in the proceedings involving the Wahgoshig First Nation.[^84] There was no delegation. As the notification letters each say, Ontario accepted that the duty to consult was its responsibility. The letters go on to point out that the courts have recognized that third parties have an important role to play and so they did. Northern Superior is the party that understood its own exploration plans, the limits of what it needed and what it could do in response to concerns of First Nations. There was no suggestion that Northern Superior was legally obligated to consult, with the result that it would have been liable to the First Nation for any failure to carry out the process. As the judge on the leave to appeal noted in reference to Haida v. British Columbia, while there was no legal obligation placed on third parties to consult, the Crown can rely on such consultation as satisfying its duty and the constitutional obligation owed to First Nations. I point out that, as a general rule, delegation refers to the passing down of any authority to decide. A decision-maker (a tribunal) cannot, unless specifically authorized, delegate a decision-making authority to another. The “duty to consult” does not perceive a decision being made. It is more closely aligned with fact-finding or investigation. These functions, typically, are open to delegation.[^85]

[89] The first arm of the test in Anns v. Merton London Council is not satisfied. The requisite proximity is not present either through the terms of the applicable legislation or through the interaction between Northern Superior and Ontario. There is no reason for me to consider the second arm of the test; however, I offer the following. This part of the test asks whether there is some policy or broader reason which should cause any duty of care to be limited or extinguished (see: para. [41], above). In the context of modern-day Canada, with the constitutional recognition of the rights of First Nations and our, generally, understood desire for reconciliation, there could be no more powerful policy recognition calling for the setting aside of any duty of care owed by the Crown to third parties than our expressed desire to come to terms with our history and our relations with those who were here first.

[90] Finally, I observe that even if I am wrong in all that these reasons decide, it would not change the result. In the end, the claims made by Northern Superior need to be measured against its own actions. For the years 2009 to 2011, the company worked positively and constructively with Sachigo Lake First Nation. There was little, if any contact, between Ontario and Northern Superior over the life of this project. Nor, it seems, did Sachigo Lake First Nation have any reason to express concern to the Ministry of Northern Development and Mines.

[91] The letter of September 6, 2012 (see: para. [80]. above) noted that the relationship began to deteriorate in late 2011. Discussions took place and Northern Superior believed the matters of concern had been resolved. Negotiations of a new agreement in respect of the proposed 2012 exploration program continued. The letter referred to the issues of concern being: (1) the 24% Administration Fee; and, (2) the requirement that the company use the Beaver aircraft owned or operated by the First Nation. The letter suggested that the “Withdrawal Order” is a further foundation for a claim and that the “Exclusion Order” (the subject-matter of the letter of July 5, 2012) was an insufficient remedy.

[92] On September 27, 2012, the Assistant Deputy Minister met with the President and Chief Executive Officer of Northern Superior.[^86] The former advised the latter that the Ministry would have to arrange to meet with Sachigo Lake First Nation to hear its side of the story. On October 26, 2012, the Assistant Deputy Minister wrote to the President and Chief Executive Officer. This correspondence was intended to report on the meeting between officials of the Ministry and representatives of Sachigo Lake First Nation that had taken place on October 24, 2012 and to confirm other discussions between ministry staff and representatives of Northern Superior. Among other things, the letter indicated the willingness of the Chief of the First Nation to continue to work with Northern Superior and to “sort out to the different perspectives each has”. On behalf of the Ministry, it offered to assist by inviting Northern Superior, on a voluntary basis, to make use of the approach found in the amendments to the Mining Act directed to resolving the differences that had occurred that had not been proclaimed (see: para. [87], above. Northern Superior was being offered an opportunity to try and resolve its problems with Sachigo Lake First Nation. By letter, dated October 28, 2012, Northern Superior responded.[^87] It rejected the offers of assistance:

As explained to Bernie Hughes on October 19 last, it is our view, based on our lengthy experience with the Sachigo Lake First Nation (‘SLFN’) and what Mr. Hughes indicated to us he had been told by the SLFN, that the Ministry’s efforts, as related to us by Mr. Hughes and as set out in your letter, are certain to prove futile.

Taking into account the circumstances that NSR has been through in the area since last year, we see engaging with the SLFN ‘to continue to work with NSR to sort out the different perspectives each has’ (as suggested by the Chief) as disingenuous and, at this late stage, rather pointless. Among other problems, the SLFN has and by all appearances will continue to provide Ministry staff with information that is incorrect and entirely self-serving. All of this has been explained to Mr. Hughes, as has the fact that the substance of what he conveyed to the Chief, we have repeatedly advised SLFN of, but to no avail.

[93] The letter concluded:

…While MNDM is, of course, free to continue to try to engage the SLFN as it sees fit, you will appreciate that NSR has no option but to continue to move forward with its claim for compensation.^88

[94] The Assistant Deputy Minister made a further attempt. On December 31, 2012, a further letter was sent to Northern Superior.[^89] In part, it noted:

The Chief and Council are certainly interested in economic development and the opportunity the project brings with regards to employment and business, and they are aware of the business benefits that the partnership has brought to SLFN through the prior agreements between NSR and the community. That said, SLFN feels that amounts they expended in goodwill on past activities need to be addressed and paid before they provide support to the next steps of the project. They also stated that the fuel drums and the use of the Beaver aircraft were items to address.

As a summary of the meeting, the SLFN Chief and Council stated that the community is still open to hearing from and considering what NSR has to say about going forward with the project.

I would like to also address items raised in your letter of November 28, 2012. In the Ministry’s view, it appears that the breakdown in NSR’s relationship with SLFN may be a product of the community’s concerns regarding a particular NSR employee. Addressing that key aspect may help the company and community restore their relationship and move the project forward. This would also be dependent on the parties seeking agreement on the other outstanding items; which, MNDM believes, can be addressed through goodwill on both sides. While it remains voluntary before April 1, 2013, the Ministry’s new permitting process may help to provide a useful framework for your efforts to engage with SLFN, and we would suggest the company consider this route.^90

[95] Finally, on January 14, 2013, Northern Superior wrote back to the Assistant Deputy Minister[^91] in response to her letter of December 31, 2012. This letter expresses the company’s need “…to repeat its position on the points raised in your letter, and also remind you of the key issues that leads Northern Superior to file a Statement of Claim against the Ontario Government”. In short, the letter stands for the idea that there is nothing new, that the issues referred to have been dealt with and have become “a smoke screen”, and further meetings would be “pointless”. The issues raised by the Sachigo Lake First Nation were, as Northern Superior perceived it, intended to deflect attention from the “core issue...which both the First Nation and the Ministry are conveniently ignoring: that the SLFN’s approach has shifted from negotiation to extortion...”. Northern Superior was unprepared to take up the offer of assistance or to engage in any further discussion. It had decided to sue the Crown.^92

[96] To put it simply, Northern Superior cannot reasonably expect to be compensated by the Crown which was never directly involved in its relationship with Sachigo Lake First Nation and who it contacted only for the purpose of seeking compensation. When, in response to the Crown’s offer to facilitate meetings with Sachigo Lake First Nation or to employ the as-yet unproclaimed amendments to the Mining Act, Northern Superior walked away, it gave up any possibility of succeeding in an action before the court regardless of the cause of action. It determined that any effort would be “pointless” and to proceed directly to the issuance of a Statement of Claim. There is nothing in this situation that could call for compensation to be paid by the Crown when it had not been involved until after the decision to sue had been taken and, then, had its offers to at least try to resolve the dispute rejected. Both parties must take a reasonable and fair approach in their dealings.

[97] To come full circle, I return to the question of a duty to consult and join it to the concerns surrounding the actions of Northern Superior. In Behn v. Moulton Contracting Ltd., the Court observed that the “duty to consult is triggered ‘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.’”[^93] In this case, the Crown was unaware of any difficulties between Northern Superior and Sachigo Lake First Nation until July 5, 2012 and did not understand the relationship to be in peril until the letter of September 6, 2012. Until then, it had no idea that there was any concern that the activities of Northern Superior were seen as adversely affecting any Aboriginal title or rights. By then, Northern Superior was unprepared to do anything other than sue. The Crown had no knowledge of the problem until its efforts at redress were refused. Its efforts to consult and look for a resolution were summarily turned down by Northern Superior.

[98] For the reasons reviewed herein, the action is dismissed.

[99] There were no submissions made as to costs. If the parties are unable to agree, I will consider written submissions on the following terms:

1. On behalf of the defendant, no later than 15 days after the release of these reasons. Such submissions are to be no longer than 5 pages, double-spaced, excluding any Bill of Costs, Costs outline or caselaw that may be relied on.

2. On behalf of the plaintiff, no later than 10 days thereafter. Such submissions are to be no longer than 5 pages, double-spaced, excluding any Bill of Costs, Cost outline or caselaw that may be relied on.

3. On behalf of the defendant, in reply if necessary, no later than 5 days thereafter. Such submissions are to be no longer than 2 pages, double-spaced.

LEDERER J.

Released: 20160525

COURT FILE NO.: CV-13-00491444-00

DATE: 20160525

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

NORTHERN SUPERIOR RESOURCES INC.

Plaintiff

– and –

HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO

Defendant

JUDGMENT

LEDERER J.

Released: 20160525

[^1]: RSO, 1990, c M.14.

[^2]:Ibid, at s. 2.

[^3]: Mining Act, supra, (fn. 1), at s. 51(1) quoted para. [69], below.

[^4]: Exhibit 14.

[^5]: Exhibit 15.

[^6]: Exhibit 6 (Thorne Lake and Ellard Lake) and Exhibit 7 (said by the President and Chief Executive Officer in evidence to be with respect to Rapson Bay and Meston Lake, but which refers to the “Hanson River and Francois Lake Areas”. In his evidence (re-examination), the President and Chief Executive Officer thought this could refer to the Township in which the claims were located. They all appear to be within the Red River – Division 20 area) and Exhibit 66 (Rapson Bay and Stull Lake).

[^7]: Exhibit 8 (It refers to Rapson Bay as well as Stull Lake and Gilleran Lake) and Exhibit 9 (Richardson Arm Area all of which appear to be in the Red River- Division 20 area).

[^8]: Exhibit 10.

[^9]: Referred to and defined in the agreement as “Consideration Shares”.

[^10]: Exhibit 16.

[^11]: The President and Chief Executive Officer of Northern Superior explained that, while this was a press release, he oversaw the work that is reflected in the results it reported. He advised that the company is required to make results of this kind public and that the applicable securities regulation requires them to be accurate.

[^12]: Exhibit 11.

[^13]: I say “as it perceived it” and “apparently” because, in the absence of any witness or evidence from Sachigo Lake First Nation, there was no opportunity for these assertions to be explained, denied or put in any contrary context.

[^14]: Exhibit 17.

[^15]: Exhibit 18.

[^16]: Exhibit 71.

[^17]: Exhibit 19.

[^18]: Exhibit 20.

[^19]: Exhibit 21.

[^20]: Exhibit 22.

[^21]: Exhibit 23.

[^22]: Exhibit 24.

[^23]: Exhibit 25.

[^24]: Exhibit 26.

[^25]: Exhibit 27.

[^26]: Exhibit 28.

[^27]: Exhibit 30.

[^28]: Exhibit 31 and Mining Act, s. 67(5).

[^29]: Exhibit 32 and Exhibit 33.

[^30]: [1978] A.C. 728 It should be said that the test set by Anns v Merton London Borough Council was subsequently rejected in England (see: Murphy v. Brentwood DC, [1991] 1 AC 398, [1990] 2 All E.R. 908; and, Caparo v. Dickman, [1990] 2 A.C. 605) but was recognized and continues to be applied in Canada (see: Kamloops v. Nielsen, 1984 CanLII 21 (SCC), [1984] 2 SCR 2, 1984; and, Cooper v. Hobart 2001 SCC 79, [2001] 3 SCR 537.

[^31]: Ibid, at pp. 751-752.

[^32]: 2004 SCC 73, 2004 S.C.C. 73, 3 S.C.R. 511, 3 W.W.R 419, 245 D.L.R. (4^th^) 33.

[^33]: Ibid, at para. 16, referring to R. v. Badger, 1996 CanLII 236 (SCC), [1996] 1 S.C.R. 771, at para. 41; and, R. v. Marshall, 1999 CanLII 665 (SCC), [1999] 3 S.C.R. 456.

[^34]: Ibid, at para.17.

[^35]: Manitoba Métis Federation Inc. v. Canada (Attorney General), 2013 SCC 14, [2013] S.C.J. No. 14. 355 D.L.R. (4^th^) 577, at para. 66.

[^36]: Ibid, at para. 79; see also, as referred to in the paragraph: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, 2005 S.C.C. 69, [2005] 3 S.C.R. 388; Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, [2010] 3 S.C.R. 103; Haida Nation v. British Columbia (Minister of Forests), supra, (fn.32); and, R. v. Badger, supra (fn. 33).

[^37]: Manitoba Métis Federation Inc. v. Canada (Attorney General), supra, (fn. 35), at paras. 48 and 49, referring to Haida Nation v. British Columbia, supra, (fn. 31), at para. 18, as well as Wewaykum Indian Band v. Canada, 2002 SCC 79, [2002] 4 S.C.R. 245, at paras. 83 and 86.

[^38]: Haida Nation v. British Columbia (Minister of Forests), supra, (fn.32), at paras. 45 and 50.

[^39]: Exhibit 116 (Notes of Meeting of Kitchenuhmaykoosib Inninuwug First Nation, Ministry of Aboriginal Affairs, Ministry of Natural Resources and Ministry of Northern Development, Mines & Forestry: September 14, 2011).

[^40]: Exhibit 117 (Notes of Meeting Ministry of Northern Development and God’s Lake Resources: November 23, 2011. At the meeting the company’s representatives said, among other things: “We won’t give notice to anyone...we’ll call the OPP when we’re on our way, but that’s it…we don’t want anyone to alert them (KI) that we’re going to be there.”

[^41]: Counsel for Ontario, in their final submissions, acknowledged that there was evidence that Kitchenuhmaykoosib Inninuwug First Nation was asserting Aboriginal title, but went on to say that such a claim was not credible because there is a treaty in which the lands were surrendered. In such circumstances, there would be no duty to consult. I am not asked to and do not make any finding as to the validity of the claim to title made by Kitchenuhmaykoosib Inninuwug First Nation. I say only that, as expressed by the First Nation, the claim would raise the prospect of a fiduciary relationship between it and the Crown.

[^42]: Hodgkinson v. Simms, 1994 CanLII 70 (SCC), [1994] 3 S.C.R. 377, at p. 461, referring to (Keech v. Sandford (1726), 25 E.R. 223); and, (Waters, Law of Trusts in Canada (2^nd^ ed. 1984), at p. 31).

[^43]: Black’s Law Dictionary, Eighth Edition, at 1315.

[^44]: (Hospital Products Ltd. v. United States Surgical Corp. (1984), 55 A.L.R. 417, at p. 454, quoted in Hodgkinson v. Simms (1989), B.L.R. 122 (B.C.S.C.), at p. 164).

[^45]: Section 35(1) of the Mining Act states: “The Minister may, by order signed by him or her, withdraw from prospecting, staking, sale and lease any lands, mining rights or surface rights that are the property of the Crown, and the lands, mining rights or surface rights shall remain withdrawn until reopened by the Minister.”

[^46]: Exhibit 110 (the “Withdrawal Order”).

[^47]: Exhibit 109 (press release: “Ontario Addresses Mineral Exploration Concerns”).

[^48]: Mining Act, s.35(3) states: A withdrawal order issued under subsection (1) does not affect pre-existing mining rights and tenure such as mining claims, mining leases or licences of occupation.

[^49]: Exhibit 107 (press release: “Ontario Reaches Agreement With God’s Lake Resources”).

[^50]: Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation 2006 CanLII 26171 (ON SC), 272 DLR (4th) 727; [2006] OJ No 3140 (QL); 150 ACWS (3d) 467; [2006] 4 CNLR 152.

[^51]: Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation, 2008 CanLII 11049 (ON SC), at para. 1.

[^52]: Supra, (fn. 35).

[^53]: Ibid, at para. 59.

[^54]: Exhibit 130 (e-mail February 13, 2012 9:54 AM: “Just to confirm, you want to actually modify the [Traditional Land Use Area] to exclude Northern Superior claims?” and, in response, e-mail February 13, 2012 9:57 AM “Yes please-- as per Bernie’s instructions and information we've gathered from the community over the past while. Rationale -- is that we have always referenced Sachigo, if the northern superior [sic] claims come up w/KI. KI has never challenged that these are in Sachigo area, not KI’s. This is information that will need to inform the tool generally, and for the purposes of a potential withdrawal of ‘KI area’ we need to ensure they are not included.”

[^55]: Exhibit 120, e-mail February 28, 2012 4:46 PM.

[^56]: 2013 SCC 26, [2013] 2 S.C.J. 227, 43 B.C.L.R. (5^th^) 1, 357 D.L.R. (4^th^) 236, 2013 CarswellBC 1158.

[^57]: Ibid, at paras. 30 and 31, referring to Beckman v. Little Salmon/Carmacks First Nation, 2010 SCC 53, 2010 S.C.C. 53, [2010] 3 S.C.R. 103.

[^58]: Exhibit 7, Exhibit 8 and Exhibit 9.

[^59]: 2012 ONCA 479, [2012] ONCA 479, 111 O.R. (3d) 161, 352 D.L.R. (4^th^) 690.

[^60]: R.S.C., 1985, c. F-27.

[^61]: Taylor v. Canada (Attorney General), supra, (fn. 59), at para. 75, referring to R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42, [2011] 3 S.C.R. 45, [2011] S.C.J. No. 42, at paras. 43-44.

[^62]: Ibid, at para. 76.

[^63]: Ibid, at para. 77.

[^64]: Supra, (fn. 30).

[^65]: Ibid, at para. 32, quoting Donoghue v. Stevenson, 1932 CanLII 536 (FOREP), [1932] A.C. 562, at pp. 580-581.

[^66]: Ibid, at paras. 32 and 33, quoting from Hercules Managements Ltd. v. Ernst & Young, 1997 CanLII 345 (SCC), [1997] 2 S.C.R. 165, at para. 24.

[^67]: Ibid, at para. 34.

[^68]: Exhibit 6 and Exhibit 7.

[^69]: Exhibit 8.

[^70]: Exhibit 30.

[^71]: Exhibit 28 (“Sachigo Lake First Nation believes that the exploration activity proposed by Northern Superior Resources within our Traditional Territory no longer remains in the best interests of our community”.).

[^72]: Exhibit 30.

[^73]: Exhibit 60.

[^74]: Ibid, at p. 1.

[^75]: Exhibit 6, Exhibit 7 and Exhibit 8.

[^76]: 2011 ONSC 7708, [2012] O.J. No. 22, 108 O.R.(3^rd^) 647 (per: C.J. Brown).

[^77]: Wahgoshig First Nation v. Solid Gold Resources Corp., 2012 ONSC 2323, [2012] O.J. No. 4363, 112 O.R. (3^rd^) 782 (leave to appeal).

[^78]: Ibid, at para. 29, quoting from Haida Nation v. British Columbia, supra, (fn. 32), at para 53.

[^79]: Ibid, at paras. 30 and 31.

[^80]: Ibid, at para. 31.

[^81]: Ibid, at para. 76.

[^82]: Wahgoshig First Nation v. Solid Gold Resources Corp., 2013 ONSC 632, [2013] O.J. 1190, 74 C.E.L.R. (3^rd^) 8 (Divisional Court appeal), at para.3.

[^83]: Ibid, at paras. 19 and 20.

[^84]: See fn. 76, fn. 76 and fn. 82.

[^85]: Sara Blake: Administrative Law in Canada, LexisNexis Canada Inc. 2011, at pp. 143-144.

[^86]: Exhibit 61.

[^87]: Exhibit 62.

[^89]: Exhibit 63.

[^91]: Exhibit 64.

[^93]: Behn v. Moulton Contracting Ltd, supra, (fn. 56), at para. 29, referring to Haida Nation v. British Columbia, supra, (fn. 32), at para. 35.