Bill Gallagher, lawyer, author and strategist.
The last six months saw Ontario courts issue two major rulings on accessing resources. Junior miners operating in the Far North have not had an easy time, mainly due to not keeping abreast of the rise of native empowerment nationally and how that dynamic impacts (or should impact) their approach to accessing traditional lands. That’s because natives have land rights writ large.
I track this phenomenon right across the country and have maintained a special interest in Ontario ever since I was kicked-off the KI reserve by the entire community; turned out to greet Platinex’s CEO and his archeologist. I personally witnessed the resulting litigation or public gyrations of all the juniors: Platinex, God’s Lake Resources, Solid Gold (and indeed Cliffs); attended many pivotal events like the roll-out of Matawa’s Ring of Fire policy, keynoted at PDAC’s grand opening, lectured at Lakehead, and attended closing arguments in the Northern Superior litigation.
My trump card was my strategic role in helping to bring-in the Voisey’s Bay IBA (although that precedent was never treated as relevant by the juniors) caught as they were in the throes of Queen’s Park and Mining Act turmoil – and the thrall of litigation lawyers.
The thrall of litigation is why this article has the title it has. The Northern Superior trial alone (not the lead-up) took a complete month. The problem being that litigators solve problems by talking to judges – not natives – meaning they really are not offering a solution to the problem. Paradoxically, in the two access rulings recently handed down, natives were not even in court; neither as litigants or observers. The courts are increasingly not happy to have to sort out these access issues in such an obvious factual vacuum.
During closing arguments, Canadian Superior’s lawyers were rebuked for imputing motives on the native side – obviously speculative. The judge’s rejoinder: “Wait a minute … First Nations are not here … there’s no evidence here … you’re asking me to imply a First Nations agenda” (Nov 09/15). In the ruling the judge addressed the missing First Nations head-on calling it: “ … the fundamental conundrum of this case. While no First Nation was a party and no First Nation member or representative appeared or gave evidence. The nature of their interest is central to the issues raised.” (par 43 of the ruling).
Only litigators ensconced in their professional silos can pull this off: petitioning the court about native actions and motives, in an action about accessing traditional lands, expecting the court to be persuaded, without the messy business of actually having to hear from the natives themselves. As a strategy this might make sense to Bay St litigators, but their clients need more than this if they hope to gain access to Traditional Lands.
The courtroom heard all about the Platinex. God’s Lake Resources, and Solid Gold experiences (again without natives attending) and some important details are revealed in the three pages of footnotes that accompany the ruling. For Sudbury-based Northern Superior, this was a case of yet another junior miner getting mired in the transitional phase of the Mining Act. It was looking for compensation from Ontario by blaming the province for Duty to Consult ineptness and (for good measure) slagging the First Nations for a purported shakedown. But as a legal strategy it didn’t work and it didn’t work for one simple reason: it was presented as Bay St bafflegab:
The judge cut to the chase at the very opening: “Sometimes, cases are not as difficult or as complicated as they may, at first, be made to appear” (para 02 of the ruling); then later at the key point: “The answer is not difficult and it is not complicated” (par 39 of the ruling). So that’s the no-nonsense tone of a month long trial wrapping-up; notably the company’s statement of claim against the Province had issued 3 years previous almost to the day. What an ordeal – fighting with the province for three years and all the while not talking to the First Nation. That’s what the judge was referring to by saying the answer is not difficult or complicated. Here are two key excerpts:
 To put it simply, Northern Superior cannot reasonably expect to be compensated by the Crown which was never directly involved in its relationship with Sachigo Lake First Nation and who it contacted only for the purpose of seeking compensation. When, in response to the Crown’s offer to facilitate meetings with Sachigo Lake First Nation or to employ the as-yet unproclaimed amendments to the Mining Act, Northern Superior walked away, it gave up any possibility of succeeding in an action before the court regardless of the cause of action. It determined that any effort would be “pointless” and to proceed directly to the issuance of a Statement of Claim. There is nothing in this situation that could call for compensation to be paid by the Crown when it had not been involved until after the decision to sue had been taken and, then, had its offers to at least try to resolve the dispute rejected. Both parties must take a reasonable and fair approach in their dealings.
 In the event that the interest at issue is one that attracts constitutional protection that is accompanied by fiduciary responsibilities, there can be no duty owed by the Crown to Northern Superior. In such circumstances, the loyalty of the Crown is to the First Nation. It cannot be that the Crown would, at the same time, owe an independent duty to a mining company to work to protect its exploration rights in the face of a legitimate constitutional concern of a First Nation. The Crown would be in the untenable position of being required to serve two opposing masters, each insisting it can rely on one of two contradictory responsibilities. In such circumstances, it would not be a matter for tort law. The constitutional rights and concerns of the First Nation would govern.
Thus it would appear today that the litigation strategy of suing government, as a Mining Act ‘backstop’, is no longer in the cards as an exit strategy for juniors who fail to gain access to traditional lands. The judge makes it abundantly clear that the reason for this is the Crown’s overriding constitutional responsibilities towards First Nations. It’s high time that the mining industry, and for that matter the entire resources sector, woke up to the reality that litigators by definition don’t talk to natives – they talk to judges – who are getting increasingly fed up with a never-ending legal conveyor belt into their courtroom, expecting them to resolve problems that to a large measure are of industry’s own making. This is native legal win #230 on Canada’s road to resources; unique as a legal win not because they won, but because they didn’t have to show-up to do so.
For the original source of this article, click here: http://www.thesudburystar.com/2016/06/18/sudbury-forum-octoberfest-for-lawyers