By: Zachary Miloff
In Wabauskang First Nation v Minister of Northern Development and Mines et al , the Court dismissed an application for judicial review brought by Wabauskang First Nation (“WFN”) against the Ontario Ministry of Northern Development and Mines (“the Ministry”) and Rubicon Minerals Corp. (“Rubicon”). The First Nation had challenged a decision of the Ministry approving Rubicon’s Production Closure Plan for its Phoenix Gold Project. The Project was located in northwestern Ontario and within the Treaty 3 territory. The First Nation took the position that Ontario delegated its duty to consult to Rubicon and failed to fulfill the duty to consult and accommodate.
Rubicon engaged in consultations with the WFN in respect of the project from 2008 to 2010. During this time, the Ministry offered to be involved in the discussions, but the WFN refused. In February 2011, Rubicon submitted a first Plan for approval by the Ministry, to which the WFN formally objected on the basis that it did not give adequate consideration to the First Nation’s interests, rights and title. Rubicon then withdrew the Plan and filed a new plan addressing the concerns raised by the WFN. The Ministry approved the new plan in December 2011, but a year later, the First Nation brought an application to suspend the decision. The WFN alleged that the Crown breached its duty to consult and accommodate by improperly delegating its duty to consult to Rubicon, failing to assess the strength of the First Nation’s claim and by not sharing its initial assessment of the claim with the First Nation.
The Court relied on the Supreme Court of Canada decision in Haida Nation v BC , and held that Ontario alone had a duty to consult and accommodate, and is only permitted to delegate procedural aspects of consultation. Although the Court found that Ontario had properly delegated procedural aspects of the duty to consult, and fulfilled its duty to consult and accommodate, the Court observed that, “if there had been an improper delegation or indeed a failure to fulfill the duty to consult and accommodate, then the remedy would have been against Ontario, not against Rubicon.”
In its review of the facts, the Court observed that the First Nation had filed the application for judicial review more than a year after the decision was issued. During this time, Rubicon had spent approximately $161 in reliance on the decision, and anticipated further expenditures of $218 million. The Court noted that Rubicon employed approximately 122 people, many of whom came from local First Nations communities, and that if the Project were stopped, even temporarily, there would be drastic implications for Rubicon and the people it employed.
Why this Case Matters
Clearly the courts are comfortable finding Crown liability to proponents where the Crown fails to properly delegate or discharge the duty to consult, and an application for judicial review is launched without delay. However, this case will present challenges for First Nations that too often lack the funding and human resource capacity necessary to launch complex judicial review early in a decision-making process. The project descriptions and review processes can often be paper intensive and there is little effort on the part of proponents to reach out to a more remote community with the necessary information and translation processes.