Wahgoshig First Nation v. Her Majesty the Queen in Right of Ontario and Solid Gold Resources Corp.
Wahgoshig holds and exercises Aboriginal and treaty rights throughout its traditional territory on the lands in and around Lake Abitibi. In November 2007, Solid Gold staked mining claims in the lands surrounding Lake Abitibi. In July 2009, Ontario advised Solid Gold that it should contact Wahgoshig to engage in consultation regarding its intended mineral exploration. Neither Ontario nor Solid Gold consulted with Wahgoshig prior to the commencement of Solid Golds drilling operations in the spring of 2011. Following the commencement of drilling operations, Wahgoshig contacted Solid Gold in an attempt to foster consultation. On November 8, 2011, Ontario again advised Solid Gold that it must consult with Wahgoshig. Solid Gold made no attempt to consult with Wahgoshig and continued its exploration activities On November 9, 2011, Wahgoshig served a Notice of Claim on Ontario pursuant to the Proceedings Against the Crown Act and initiated this motion for an interlocutory injunction. Ontario Superior Court held that it had jurisdiction to grant the relief requested. While Wahgoshig had not yet commenced an action, it had served a Notice of Claim and would serve a statement of claim on the expiration of the notice period. This, the Court held, constituted an intended action and was within the contemplation of Rule 40.01 of the Rules of Civil Procedure. The Court applied the tripartite test for granting injunctive relief outlined by the Supreme Court in RJR MacDonald Inc. v. Canada. On the issue of a serious question to be tried, the Court rejected Solid Golds reliance on the Ontario Court of Appeals ruling in Frontenac Ventures Corp. v Ardoch Algonquin First Nation, holding that in Frontenac the Court was not facing a constitutional challenge to the Mining Act. The Court also recognized that, since the ruling in Frontenac, the Ontario government had amended its legislation to promote reconciliation between project proponents and First Nations. The Court held that Wahgoshigs claim was not frivolous or vexatious and thus, the first branch of the RJR-MacDonald test was met. The Court went on to reject Solid Golds submission that the applicant failed to demonstrate proof of actual irreparable harm which could not be compensated by damages. The Court found that certainty of irreparable harm is not always required and that such certainty may not be possible where the duties to consult and accommodate have not been met there is often a lack of knowledge about the impacts of a project. Further, the Court recognized developments in the case law which have recognized that negative effects on Aboriginal and treaty rights and restrictions on the ability to exercise such rights in their preferred manner or location in itself constitutes irreparable harm. The Court also reaffirmed existing jurisprudence which has held that the mere lost opportunity to be meaningfully consulted and to obtain accommodation for impacts constitutes irreparable harm which cannot be compensated by damages. Accordingly, the second branch of the RJR- MacDonald test was met. The Court also found the balance of convenience in this case to favour the applicant. The Court agreed that refusing to enjoin Solid Gold from its activities would send a message that Aboriginal and treaty rights, including the right to be consulted and accommodated, could be ignored by exploration companies. This, the Court held, would not be in the public interest. Solid Gold was enjoined from carrying on any further exploratory activity on the lands in question for 120 days from the date of the decision. During the injunctive period, Solid Gold, Wahgoshig and Ontario were to enter into a process of bona fide, meaningful consultation and accommodation. Should this process fail to be productive, Wahgoshig was entitled to seek an extension of the injunction. The Court also dispensed with the requirement for an undertaking for damages as requested by the applicant.