The Ontario Superior Court threw out a junior mining company’s permit for drilling work on Eabametoong First Nation’s traditional territory in northern Ontario after ruling that the company and the province had failed in their duty to adequately consult with the Nation.

Justice Harriet Sachs wrote in a mid-July ruling that Landore Resources Canada and Ontario’s Ministry of Northern Development and Mines (MNDM) did not meet the required level of consultation to be seen as “upholding the honour of the Crown” when dealing with Eabametoong.

The judge wrote that both Landore and the MNDM dealt with Eabametoong in an opaque way that left the First Nation in the dark about why and how decisions were being made, and excluded them from parts of the process.

Sachs remitted the exploration permit back to the government “pending completion of adequate consultation” with the First Nation.

“Certain clear expectations were created by the Crown and its delegate, Landore, as to how the duty to consult would be fulfilled in this case and then, without meeting those expectations or offering an explanation as to why they could not be met, the Crown changed the process in such a way as to render it one that could not reasonably be considered to be a genuine attempt at ‘talking together for mutual understanding,’” Sachs wrote in her judgment.

One of the lawyers who represented Eabametoong, Krista Robertson, said the ruling is a relief to the people of the community.

“It’s terrible for a First Nation to have to go through a case like this. It’s expensive. It’s stressful. Nobody wants these cases to end up in the courts,” Robertson said. “So I do hope that everyone pulls their socks up on the proponent and government side and does a better job, so that First Nations don’t have to go through the court process.”

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Cameron Ferguson, a spokesman for the MNDM, said the government would not appeal and “will move forward with obligations set out in the Divisional Court’s decision.

“The ministry values our relationship with Eabametoong First Nation. We look forward to working with the community in the future,” Ferguson said. “The government continues to review and evaluate Ontario’s approach to mineral exploration and development, including duty to consult, through collaboration with Indigenous communities, industry partners and other stakeholders.”

Questions sent to Landore by CIM Magazine went unanswered.

The company’s exploration permit is for claims on Treaty 9 lands near the Miminiska and Keezhik Lakes, some 40 kilometres west of Eabametoong First Nation, which is used extensively by members of the Nation for fishing, hunting and spiritual purposes.

Relations between Landore and Eabametoong began amicably, with Landore telling the First Nation at the beginning of the permit process, in 2013, that the company would not go forward with drilling without first agreeing on a memorandum of understanding (MOU).

After two face-to-face meetings with the community, a third was promised by Landore’s CEO to address some of Eabametoong’s concerns. Eabametoong hoped to review the company’s drilling plans and work on the MOU, but Landore never responded to an email from the First Nation proposing a date for the third meeting.

Both the ministry and Landore stopped trying to set up a meeting with Eabametoong. Landore had a private meeting with the ministry in January 2016 during which the company revealed they were in preliminary acquisition talks with Barrick Gold, the judgment said, and began to push the ministry to approve the permit as soon as possible, because of the negotiations.

The MNDM eventually emailed the Nation with a deadline of five business days to approve a list of proposed conditions on Landore’s permit. Despite Eabametoong’s objections to the deadline and the conditions, Ontario approved the permit.

During the process, the Nation had sent a list of its concerns to the Ontario government but never heard anything back. In court, it came out that the ministry had done a detailed review of the concerns, but never took their analysis back to the community.

All of these factors added up to a lack of consultation, Sachs wrote.

“There was no real and genuine attempt by the Ministry or Landore to listen to Eabametoong’s concerns, provide feedback about those concerns and to discuss ways to meet those concerns (if possible),” the ruling says. “Instead, the concerns were noted, the expected opportunity for discussion was foreclosed without explanation and the Ministry proceeded in a unilateral way (without seeking or giving real feedback) to make its decision.”

Sachs added that the ministry’s conduct “cannot reasonably be considered to be the type of conduct that would promote reconciliation between the Crown and Indigenous peoples.”

Robertson said that an overview of the process might look quite impressive, “but it really actually wasn't responsive consultation or genuine consultation and I think that happened particularly with Landore, but also with Ontario.”

She said she thinks the conclusion that the substance of the consultation should go beyond ticking boxes will have broader impacts through the industry. “I think this is a case that requires Ontario and mining companies to be mindful their consultation processes in any case can be judicially reviewed and put under a microscope. And if they are not genuine, they will not stand,” Robertson said.