Ontario Court Affirms Crown’s Delegation Of Consultation To Proponent Under 'Mining Act'

INTRODUCTION

On August 28, 2014, in Wabauskang First Nation v. Minister of Northern Development and Mines1 (Wabauskang), the Ontario Divisional Court (Court) dismissed a judicial review application brought by Wabauskang First Nation (WFN) against the Ontario Ministry of Northern Development and Mines (Ministry) and Rubicon Minerals Corporation (Rubicon).2 WFN had challenged a decision (Decision) of the Ministry's Director of Mine Rehabilitation (Director) to acknowledge (and thus approve) Rubicon's Production Closure Plan (Closure Plan) for its Phoenix Gold Project located in northwestern Ontario (Project).

This decision provides an illuminating discussion and clarification of several principles of the Crown's duty to consult originally set out in the 2004 decision of the Supreme Court of Canada (SCC) in Haida Nation.3 In particular, it addresses the appropriate scope and substance of consultation in the context of Treaty 3 in Ontario and confirms the authority of the Crown to delegate procedural aspects of consultation to proponents. In this decision, the Court also accepts as reasonable the institutional procedures put in place by Ontario under the Mining Act4 to assess Aboriginal claims, potential impacts on such claims and the adequacy of consultation.

BACKGROUND

The Project is a proposed gold mine located on privately held land on an isolated peninsula within Treaty 3 lands, including the traditional territory of WFN. Much of the Project land is a brownfield site and has been under various stages of exploration and industrial activity since the 1950s. In 2002 Rubicon acquired an option on the Project site, which was already in advanced stages of mineral exploration.

In order for a proponent to proceed with advanced exploration or to commence mine production in Ontario, the Director must acknowledge receipt of a closure plan made in accordance with the Mining Act and its Regulation. Following consultations with WFN in 2009 and 2010 and negotiations for a benefits agreement, Rubicon filed an initial production closure plan with the Ministry in February 2011. Rubicon voluntarily withdrew its initial plan to allow for additional consultation with WFN and delayed refiling of the plan several times to allow time for a consultant for WFN to review the plan. In October 2011, Rubicon submitted to the Ministry the revised Closure Plan, which addressed the concerns raised by the WFN consultant and included all recommended mitigation measures.

WFN raised concerns with the filing of the revised Closure Plan and in particular questioned Ontario's jurisdiction to accept the Closure Plan on the basis of the trial court's decision in Keewatin v. Minister of Natural Resources,5 which was released in August 2011. In Keewatin, the trial judge held that on the basis of Treaty 3, absent prior authorization of the federal government, Ontario could not take up or authorize taking up of Treaty 3 lands if it would significantly interfere with Treaty 3 harvesting rights.

Despite WFN's concerns, the Director issued the Decision in December 2011. Relying upon the Director's acknowledgement of the Closure Plan, Rubicon proceeded with development of the Project. In December 2012, WFN applied for judicial review of the Decision, seeking...