Recent Judicial Developments Relating to Aboriginal Rights in the Context of Ontario’s Mining Act and its Reform
August 28, 2008
The Platinex Case
On May 28, 2008, the Ontario Court of Appeal granted an appeal by eight Aboriginal leaders seeking to reduce the sentences that the Ontario Superior Court had imposed on them after finding them in contempt for organizing a protest at a potential platinum mining site. In its submissions to the appeal court, the mining company, Platinex Inc. (Platinex), had acknowledged that the matter "would ultimately be settled only through negotiation, and that no good purpose would be served by keeping the appellants in jail any longer." The original sentences were to be for six months, and the leaders were released after having served 68 days of their sentences.
The Court of Appeal’s judgment in Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation is the most recent episode in a judicial saga involving Platinex, a junior exploration company, and the Kitchenuhmaykoosib Inninuwug First Nation (KI), an Ojibwa/Cree First Nation occupying a reserve on Big Trout Lake in northern Ontario. The initial action was instituted in 2006, following seven years of negotiations between Platinex and KI concerning an exploration program to be conducted on Platinex’s unpatented mining claims located on traditional non-reserve KI land. During the negotiations, which occurred in 2001, KI had adopted a moratorium on all mineral activities until proper consultations had taken place.
In July 2006, an interim order was granted by the Ontario Superior Court barring Platinex from engaging in its exploration program for five months, conditional upon KI setting up a consultation committee to draft an agreement that would allow Platinex to conduct its exploration activities. This injunction was later extended by a few months, but the court thereafter refused to renew the injunction. In so doing, the judge acknowledged KI’s perspective but observed that no concrete evidence supported KI’s assertion that Platinex’s exploration program could threaten KI’s culture and heritage. The court also praised Platinex for its proposal to act cautiously, with constant consultation and attention to KI concerns. In October 2007, the court issued an order (the Permission Order) allowing Platinex to proceed with the first phase of its exploration program.
In December 2007, the court found eight KI community leaders in contempt of the Permission Order for having prevented Platinex’s employees from beginning the first phase of the exploration program. The evidence was that these leaders, along with other community members, had prevented Platinex’s drilling staff from entering the village’s airport and that Ontario Provincial Police First Nation police officers had threatened them with arrest if they did not leave KI’s land.
In March 2008, the court sentenced the eight KI leaders to six months’ imprisonment for contempt. Significantly, the court stated that the desire of Aboriginal communities to protect their land, cultural heritage and way of life does not supersede a court order granting a corporation the right to proceed with economic development activities on its land. Among the aggravating factors found by the court was the fact that the eight individuals were community leaders who had used their position of authority to incite other community members to repeatedly and continuously defy the order. In the court’s view, such flagrant and repeated defiance warranted a severe prison term.
The Frontenac Case
The judgment sentencing the eight KI leaders in March 2008 followed an earlier decision of the Ontario Superior Court in Frontenac Ventures Corporation v. Ardoch Algonquin First Nation sentencing two Aboriginal leaders of the Ardoch Algonquin First Nation to six-month prison terms and fines of $15,000 and $25,000, respectively. The court found them in contempt for organizing a peaceful protest at a potential uranium mining site. These sentences were later set aside by the Ontario Court of Appeal on July 7, 2008, at the same time as it released its decision on the Platinex appeal. In reversing the lower court’s decision, the Court of Appeal stated that the sentencing principles developed by the Supreme Court of Canada for the sentencing of Aboriginal people convicted of criminal offences were "applicable when fashioning a sentence for civil or criminal contempt on the part of aboriginal contemnors." In a passage that has potentially far-reaching implications for companies involved in mining activities across Canada, the Court of Appeal emphasized the implications of enforcing injunctive relief based on the Mining Act (Ontario) on land subject to Aboriginal land claims. In the Court of Appeal’s view, such injunctive proceedings inherently create disadvantage for Aboriginal communities because of the absence of any consideration about Aboriginal land claims or interests in the Mining Act. In this context, according to the Court of Appeal, "the use of incarceration as the first response to breach of the injunction dramatically marginalizes the significance of Aboriginal law and Aboriginal rights."
Other mitigating factors reviewed by the Court of Appeal included that (i) the Aboriginal leaders were first-time offenders; (ii) the protests were peaceful; and (iii) the community had already purged their contempt by the time the sentence was imposed, having undertaken not to continue their protests and blockade activities. In light of these factors, the Court of Appeal decided that incarceration and substantial fines were inappropriate. In a possible allusion to Platinex, the Court of Appeal in Frontenac did, however, leave open the possibility for courts to impose incarceration and fines on those found guilty of contempt, including Aboriginal people, in other circumstances:
That is not to say that incarceration is always out of place in civil contempt cases. In some cases, including potentially this case down the road, incarceration and substantial fines may be necessary. However, it would be wrong to cross this bridge now for these first offenders in a situation that cries out for dedicated negotiation among Ontario, the AAFN and Frontenac with a view to reconciliation of the competing interests.
Indeed, in a Statement of Claim filed on May 8, 2008, Platinex is now claiming $10 million from KI alleging that "as a result of threats, intimidations and breaches of Court orders by the leadership and members of the KI communities, it has not been able to access its Big Trout Lake property since February 2008." Platinex is also claiming $50 million from the Ontario Government alleging that it failed its duty to consult KI and for its failure to warn Platinex of its inability or unwillingness to enforce the rule of law in Platinex’s claims. The outcome of these recent claims remains to be seen.
Implications of these Decisions
Albeit from different standpoints, the recent judicial developments in Platinex and Frontenac may be relevant to the reform of Ontario’s Mining Act, at least with regard to the inclusion of provisions mandating broader consideration of Aboriginal and treaty rights, and related issues. The Ontario government is committed to modernizing its Mining Act and is currently conducting public consultations in this regard.
On August 11, 2008, the Ministry of Northern Development and Mines (MNDM) released a discussion paper titled "Modernizing Ontario’s Mining Act – Finding a Balance." This document states that the main purpose of the reform is to achieve a balance between economic interests and other interests, especially those of Aboriginal communities. It identifies five critical policy issues that must be taken into consideration in the review of the Mining Act. Four of these issues directly address Aboriginal issues: (i) adjustment to the mineral tenure system, including free entry, to assure investment security while taking into account other interests; (ii) consultation and accommodation relating to Aboriginal and treaty rights; (iii) regulatory processes for exploration activities on Crown land, including consultation and accommodation with Aboriginal communities; and (iv) land use planning in Ontario’s Far North.