LEAVE TO APPEAL
Reason to doubt injunctive relief available against third party
Appellant sought leave to appeal motion judge’s granting injunction. Appellant obtained mining claims under Mining Act (Ont.), in respect of claims block. Claims block land were adjacent to treaty land of respondent First Nation and lied within traditional territory over which First Nation asserted treaty and Aboriginal rights. Ontario advised appellant that it should contact First Nation to consult with it regarding intended exploration program. No consultation occurred before appellant began drilling. First Nation brought claim seeking declaration that appellant breached First Nation’s aboriginal or treaty rights under s. 35(1) of Canadian Charter of Rights and Freedoms and it sought damages. First Nation then brought motion for interlocutory injunction restraining appellant from engaging in activities relating to mineral exploration in area of treaty lands. Motion judge proceeded on basis that appellant was subject to duty to consult and accommodate that had been delegated to it by Ontario. Motion judge granted injunction. Leave to appeal granted. There were conflicting decisions on whether appellant was subject to duty to consult in respect of its proposed exploration program. Insofar as motion judge’s decision was based on conclusion that appellant had duty to consult and that informed conclusion regarding requirement of prima facie case and irreparable harm, there was reason to doubt correctness of decision. There was reason to doubt that injunctive relief was available against third party in respect of First Nation’s intended action. There was reason to doubt correctness of decision insofar as First Nation asserted it was entitled to injunction against appellant based only on Crown’s failure to consult and accommodate and irreparable harm arising by appellant’s proposed drilling program. Issues raised matters of importance such that appeal should be heard. Court should clarify respective obligations of Crown and mining exploration companies operating in Ontario toward First Nations whose treaty or aboriginal rights might be adversely affected by exploration activities.
Wahgoshig First Nation v. Ontario (Sep. 4, 2012, Ont. S.C.J. (Div. Ct.), Wilton-Siegel J., File No. DC-12-00000027-00ML) Leave to appeal from 213 A.C.W.S. (3d) 463 was allowed. 221 A.C.W.S. (3d) 774.
