First Nation in northwestern Ontario granted temporary injunction to prevent mineral exploration

A First Nation in Treaty 9 in northwestern Ontario is celebrating a legal win that will see a sacred area in its lands temporarily protected from mineral exploration activities.

A judge with the Ontario Superior Court ruled in favour of Ginoogaming, a First Nation about 300 kilometres northeast of Thunder Bay, Ont., granting a temporary injunction to stop mining exploration in Wiisinin Zaahgi'igan, a sacred area considered by the First Nation to be its "breadbasket, its church, its heartland, its graveyard and its hospital."

The injunction is part of a larger legal battle in northwestern Ontario, one that some have said could set a precedent in Canada that would establish the inherent and treaty right of First Nations to protect sacred areas.

Kate Kempton, a partner with OKT Law and lawyer for Ginoogaming, called the decision "a huge relief," but said their work to safeguard the sacred area was far from over.

"We're not done. This is a preliminary decision," she told CBC News in an interview.

In her ruling, judge Susan Vella agreed with lawyers for Ginoogaming that the province failed in its constitutional duty to consult with the First Nation before issuing a mineral exploration permit inside the sacred area of Wiisinin Zaahgi'igan to mineral exploration company Hardrock Extension Inc.

But the injunction is only temporary, as the judge wrote, "it is premature to consider whether an interlocutory injunction ought to be granted at this stage of the proceedings."

Instead, she ordered Ginoogaming and the province to continue meaningful consultation, which Vella said could include more work by the First Nation "to collect the information it needs regarding identifying cultural and spiritual locations, and key areas for medicinal harvesting, hunting, fishing and other key traditional practices within Wiisinin Zaahgi'igan."

"This is not a situation where tweaking around the edges of a project ... is something that will accommodate or address the First Nation's concern.- Kate Kempton, lawyer for Ginoogaming First Nation

The parties are expected to report back to the judge in January 2022, Kate Kempton told CBC News, at which point Vella will then decide if she will grant the interlocutory injunction originally sought by Ginoogaming or do something else.

It's a decision that Kempton called "perplexing."

"The whole basis of our case is that this is not a situation where tweaking around the edges of a project — you know, changing the dates to do this or a bit of the location to do that — is something that will accommodate or address the First Nation's concern," she said.

"These permits should never have been issued in this area at all," Kempton said. "It's very difficult right now for me to see how further consultation is going to be able to address the underlying issues."

Exploration companies 'caught in the middle': judge

In her decision, presiding judge Susan Vella wrote, "the court is sympathetic to the plight of the Prospecting Companies and in particular Quaternary, as they are, in a manner of speaking, caught in the middle between the Crown and Ginoogaming who are seemingly at an impasse."

The court case has also been a source of frustration and disappointment for Michael Malouf, the 74-year-old president of Hardrock Extension Inc., who previously told CBC News he's invested roughly $7 million into conducting mineral exploration in the area over several decades.

"This injunction, I feel, is the kiss of death for the industry," said Malouf, adding that the numerous court cases between governments and First Nations have created considerable uncertainty in the mining industry, especially for smaller exploration companies like his own.

The province issued permits in 2019 to the company to conduct early exploration in a property stretching 24 kilometres long by three kilometres wide, with about one-third of that property inside the Wiisinin Zaahgi'igan sacred area.

Judge Vella wrote in her ruling that Ginoogaming has not objected to early exploratory activities taking place within the permitted area beyond Wiisinin Zaahgi'igan, but she also acknowledged the "highly speculative nature of prospecting … and that it is not unusual for mining claims to not progress beyond the staking of claims."

Asked about his next steps, Malouf said: "I don't know, I have to try to remain hopeful … I have faith that things are going to work out, but I don't have faith that I'm going to live long enough."

Ginoogaming's lawyer Kate Kempton also signalled that she expects a long legal battle ahead unless the Crown acknowledges it should never have issued the early exploration permits and "offers to buy out and retire" the mineral claims in the First Nation's sacred area.

She said that could result in a longer-term agreement with Ontario to permanently withdraw Wiisinin Zaahgi'igan from industrial development.

"There are statutory mechanisms to do that; it just takes political will," Kempton said. "And we have not seen anything from this Crown government so far to do that."