Proponents And Government Compromise Consultation Under Ontario's Mining Act In Eabametoong First Nation V Minister Of Northern Development And Mines

On July 16, 2018, a three judge panel of the Ontario Superior Court of Justice Divisional Court released its decision in Eabametoong First Nation v Minister of Northern Development and Mines.1 The decision highlights how proponent statements and Crown responses can compromise the Crown's duty to consult, even in situations where the duty falls to the lower end of the Haida Nation v British Columbia (Minister of Forests)2 consultation spectrum.

Facts

Since 2012, higher-impact mineral exploration activities in Ontario have required an exploration permit from the Ministry of Northern Development and Mines (the Ministry). Once an application for an exploration permit has been received from a proponent, the Director of the Ministry (the Director) identifies and notifies any Aboriginal communities that may be affected by the proposed activity. Those communities may provide the Director with written comments regarding any adverse effects the proposed activities may have on their existing or asserted Aboriginal or treaty rights, in which case the Director will instruct the proponent to consult with the Aboriginal community. The Director may request information regarding any arrangements reached with an Aboriginal community, or the efforts made to reach an agreement, before deciding whether to issue the exploration permit.3

In August, 2013, Landore Resources Canada (Landore), which held mineral claims in the traditional territory of the Eabametoong First Nation (Eabametoong),4 contacted the Chief of Eabametoong to advise that they wished to conduct a drilling campaign in early 2014.5 In response, the Chief wrote that Eabametoong would like to have a face-to-face meeting with Landore and wanted to enter into an "agreement in the form of an MOU or LOI."6 In a letter of response, Landore welcomed the opportunity for a meeting, wrote that they too would "like to sign a Memorandum of Understanding with Eabametoong," and attached a proposed draft MOU.7 Landore submitted its application for an exploration permit on October 10, 2013.

Following an initial meeting between Eabametoong and Landore in December 2013, a revised MOU was provided to Eabametoong.8 Eabametoong held an internal meeting in early January 2014 where a number of concerns were raised regarding the proposed exploration activities. These concerns were shared with the Ministry which promised, but failed, to follow-up.9

Due to scheduling difficulties, a follow-up meeting between Eabametoong and Landore did not occur until July 2014.10 At the end of the meeting, the CEO of Landore committed to a follow-up community meeting.11 The promised follow-up meeting never occurred.

For nearly a full year after the July 2014 meeting, Eabametoong experienced a "community crisis."12 Landore twice proposed meeting dates, but during this time, "neither party communicated any sense of urgency about setting up this meeting."13

In June 2015, Landore reached out to request a date for the follow-up meeting, stating that the MOU would be discussed.14 The Chief emailed back suggesting a meeting in early August. Landore did not reply.15 In the fall of 2016 the Ministry intervened to coordinate a meeting, proposing a date in January that Eabametoong accepted but...