Industry Spotlight
Who carries the true
duty to consult?
Lawyers on both sides hope changes to Ontario���s Mining
Act will clarify the duty to consult, but skeptics say the
province continues to wash its hands of the issue.
By Michael McKiernan
When members of the northern Ontario
Wahgoshig First Nation stumbled across an exploratory drilling team preparing to clear forest and bulldoze access routes
on its traditional land in the spring of 2011, the work crew
was unwilling to disclose whom they were working for.
It had been almost two years since their employers, junior
miner Solid Gold Resources Corp., received instructions
from the Crown to contact the band for consultation over its
plans for a 22,000-hectare patch of unpatented mining claims,
and none had occurred.
When the Wahgoshig finally figured out who they were
dealing with, they tried in vain to contact Solid Gold to get
the consultation belatedly started. By November 2011, the
province was moved to intervene with a letter that repeated
its earlier instructions. The next day, the First Nation turned
to the courts, initiating a claim against the province and Solid
Gold, and later won an injunction that prevented any further
drilling by the company.
In its 2004 decision in Haida Nation v. British Columbia,
the Supreme Court of Canada said the Crown bears legal
responsibility for the duty to consult and accommodate
Aboriginal groups, but confirmed that procedural aspects
ca na dia nl awy e rm a g . c o m / i n h o u s E
December 2012/January 2013
���
39
