On September 4, 2012, the Ontario Superior Court granted leave to appeal an interim injunction obtained by a First Nation against an exploration company in Ontario, Solid Gold Resources Corp. (Solid Gold). In granting leave, the Court found that there was conflicting case law and good reason to doubt the correctness of the injunction motion decision.
Among other things, the Court was clearly of the view that neither Solid Gold, nor any other junior mining company, has a duty to consult with First Nations before commencing its exploration on traditional territory. Indeed, the Court seriously questioned whether even the Crown has a duty to consult in such situation given the free entry system provided under the current mining regime in Ontario.
Mr. Justice Wilton-Siegel found that the case raises important matters concerning the relationship among Aboriginal communities, industry and government that should be addressed on appeal. The Court's decision has significant implications for the resource industry, First Nation communities and government. Indeed, this decision clearly undermines the Province's current approach to exploration in Ontario.
Absent a duty to consult, it would be extremely difficult for a First Nation to obtain injunctive relief against a proponent conducting exploration on traditional territory.
Neal J. Smitheman and Tracy A. Pratt of Fasken Martineau’s Toronto office acted as counsel for Solid Gold Resources Corp., with assistance from Scott Rollwagen and Andrew M. Baerg.