Wahgoshig case sets precedent for First Nations, says lawyer

The lawyer behind Wahgoshig First Nation’s (WFN) successful court action against a gold mining company says the decision in the case will serve as a precedent for other Ontario
First Nations Ontario in conflict with mining companies on traditional land.
Kate Kempton, a lawyer with Olthuis Kleer Townshend LLP, said the injunction against Solid Gold Resources sets the bar higher in forcing companies to conduct meaningful consultation with First Nations before exploration work starts.
“We think (this decision) does set and strengthen injunction laws for First Nations,” Kempton said. “The judge was very clear that the parties have to engage in a bona fide, meaningful consultation and the process has to include accommodation.”
Ontario judge Carol J. Brown ruled on January 4 that Solid Gold had to stop its exploration work on WFN land. The judge gave the company 120 days to conduct meaningful consultation with the First Nation.
WFN filed for an injunction against Solid Gold in December after the company refused to halt drilling or exploration work while government-ordered consultation between the two sides took place.
Wahgoshig’s Chief David Babin said the community first discovered Solid Gold on its traditional lands in the spring of 2011.
“We are very pleased with this decision,” Babin said. “We feel that justice has been done. Exploration and other companies across Canada will hopefully recognize that Aboriginal and treaty rights really mean something and that the courts will not let our rights be trampled on by unilateral actions and failures of industry and government.”
Solid Gold had argued during the court case that Treaty 9 lands were surrendered long ago, so that WFN had no claim to those lands. The company also argued that the Ontario Mining Act provides for “free entry” to the lands, entitling Solid Gold to proceed with its exploration work.
Under terms of the injunction Solid Gold, WFN and the government of Ontario were ordered to engage in consultation and the company was ordered to accommodate the First Nation’s interests during the consultation process.
The judge noted that WFN is entitled to seek an extension of the injunction if it is not satisfied with the outcome of the consultation.
Ontario ministry of Northern Development and Mining spokesperson Adrian Kupesic said the government plans to release new regulations on the duty to consult with First Nations under the Mining Act later in the year.
In the meantime, Kupesic said, the government is “constantly looking to bring both sides to the table.”
So far, consultations between the two sides have not started.