Aboriginal Law Bulletin
August 2008
Fasken Martineau DuMoulin LLP
Frontenac and Platinex Cases: The Court of Appeal Weighs in on Aboriginal
Protests
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On July 7, 2008, the Court of Appeal
released its reasons from two
sentencing appeals arising from civil
contempt. In both cases, the contempt
related to breaches by aboriginal
“protestors” of an injunction in
favour of a mineral exploration
company. The injunction arose from
a blockade of a public road by
Kitchenuhmaykoosib
Inninuwug
(“KI”) in the Platinex case and the
trespass on, and occupation of,
private property by two Algonquin
communities in the Frontenac
Ventures case. Neither the injunction,
nor the ensuing contempt, was
appealed by the First Nations. In both
instances, the motions judge ordered
six months incarceration for the
contemnors with the opportunity to
discharge fully the custodial term
upon the contemnors agreeing to
obey the injunction in the future. The
appellants refused to purge their
contempt and later appealed the
sentences. Both appeals were allowed
(the appeal on the Platinex matter
was not opposed). Although the
discrete issue of sentencing on a civil
contempt was before the court, the
decision speaks broadly about the
granting of injunctions in the context
of rising tensions between the rights
and interests of Aboriginal Peoples
and those of industry and nonaboriginal citizens of Canada.
Background
Frontenac Ventures Corporation
(“FVC”) is a small uranium
exploration company in the first
phase of low impact exploration
activities. FVC holds several mining
claims, mining leases and private
agreements on lands located in the
Ottawa Valley outside of Sharbot
Lake. FVC’s exploration property
lies within the 14,000 square
kilometers that form the subject
matter of a land claim made by the
Algonquins of Ontario (“AOO”).
AOO represents the interests of nine
Algonquin communities through 16
Algonquin
negotiation
representatives. There are three
Algonquin communities in the
vicinity of the exploration property:
the Shabot Obaadjiwan First Nation
(“Shabot”), the Sinimikobi First
Nation (“Sinimikobi”) and the
Ardoch Algonquin First Nation
(“AAFN”). The Shabot and the
Sinimikobi are participating in the
land claim process through the AOO.
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Aboriginal Law Bulletin
The AAFN is neither participating in the AOO
land claim nor has it commenced an
independent land claim. In June 2007, members
of the AAFN and the Shabot staged an
occupation of private property and prevented
FVC from accessing its exploration property or
conducting any of its exploratory work. The
stated reason for the occupation was the alleged
failure by Ontario to consult about FVC’s
exploration plan and the renewal of a mining
lease.
spokesperson and principal negotiator of AAFN
and a professor at Queen’s University and
Fleming College), Paula Sherman (Co-Chief of
AAFN and a professor at Trent University) and
Harold Perry (Honorary Chief of AAFN)
admitted contempt and participated fully in the
contempt sentencing hearing. Just prior to the
sentence being rendered, Perry agreed to purge
his contempt and the company did not seek
sanctions against him based on undertakings to
the court. Lovelace gave evidence that neither
he, nor Sherman, would comply with the
injunction in the future. Both were sentenced to
six months in jail but with the opportunity for
that custodial term to be discharged on the
purging of their contempt. Fines of $25,000,
$15,000 and $10,000 were imposed against
Lovelace, Sherman and AAFN respectively.
The motion judge ordered that the AAFN’s
statement of defence be struck and no motions
or applications be brought to the court on its
behalf until the contempt was purged. Shortly
after receiving her sentence Sherman “purged”
her contempt and undertook to obey the
injunction; the motions judge discharged the
custodial term.
As a result of the occupation, FVC commenced
an action and sought an injunction against
AAFN, Shabot and its leaders to restrain them
from interfering with its access and obstructing
its exploration activities. Ultimately, the First
Nation defendants decided not to participate in
the injunction motion. Mr. Justice Thomson and
Associate Chief Justice Cunningham granted an
interim and interlocutory injunction in favour of
FVC respectively. The blockade continued
despite the injunction orders. FVC brought a
contempt motion. This motion was adjourned as
a term of an agreement to enter into mediation
for a twelve-week period, a condition of which
was the end of the aboriginal occupation. The
twelve-week mediation did not resolve the
dispute and the First Nation defendants
reinstated conduct contrary to the injunction
order. The previously-adjourned contempt
motion proceeded.
During the course of the contempt motion, the
Shabot leaders agreed to comply with the
injunction going forward by providing certain
undertakings to FVC and the court.
Accordingly, FVC did not seek any contempt
sanctions against Shabot1. The AAFN and its
leaders Robert Lovelace (prior Chief,
1
FVC currently is engaged in a consultation process with
Shabot, Sinimikobi, AOO and Ontario.
2
The Court of Appeal’s Analysis
(a) Injunctions
Although the only issue before the Court of
Appeal was the appropriateness of the sentence
imposed for contempt of court, the Court also
engaged in a discussion on the broader issue of
injunctions and when they should be granted in
an aboriginal “protest” context. Critical
components of this analysis were the rule of law
and the Crown’s duty to consult First Nations
who assert an aboriginal or treaty right. Relying
on a decision arising out of the Caledonia
situation,
Henco
Industries
Ltd.
v.
Haudenosaunee Six Nations, MacPherson J.
states that:
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[43]
In my view, the stage at which
the comprehensive and nuanced description
of the rule of law expressed in Henco must
be considered is when a court is requested
by a private party to grant an injunction and
where doing so might have an adverse
impact on asserted aboriginal and treaty
rights affirmed in s. 35 of the Constitution
Act, 1982. Such cases demand a careful and
sensitive balancing of many important
interests in assessing whether to grant the
requested injunction and on what terms.
On the basis of giving “judicial guidance on the
role to be played by the nuanced rule of law
when courts are asked to grant injunctions, the
violation of which will result in aboriginal
protestors facing civil or criminal contempt
proceedings”, the Court states that:
[46]
Having regard to the clear line
of Supreme Court jurisprudence, from
Sparrow to Mikisew, where constitutionally
protected aboriginal rights are asserted,
injunctions sought by private parties to
protect their interests should only be granted
where every effort has been made by the
court to encourage consultation, negotiation,
accommodation and reconciliation among
the competing rights and interests. Such is
the case even if the affected aboriginal
communities choose not to fully participate
in the injunction proceedings.
The Court went on to say that the court must
ensure that the Crown has “fully and faithfully
discharged its duty to consult with the affected
First Nations” if there is a request for an
injunction to create “a protest-free zone for
contentious private activity that affects asserted
aboriginal or treaty rights”
This “judicial guidance” on injunctions is
troublesome. It could be argued that the Court
Aboriginal Law Bulletin
3
of Appeal is effectively attempting to grant First
Nations a “veto” power wherever there is an
outstanding land claim regardless of the strength
or merits of such claim. This would be contrary
to Supreme Court of Canada jurisprudence
respecting the duty to consult, which clearly
establishes that there is no First Nations veto
power. It also appears to be inconsistent, and
unnecessarily interferes, with the wellestablished test for the granting of injunctions.
Interestingly, the B.C. Court of Appeal held that
the existing law on injunctions was not changed
because of the Supreme Court of Canada
jurisprudence respecting the duty to consult.2
Among other things, the Ontario Court of
Appeal discussion not only fails to address
sufficiently the practical reality of the business
of exploration but it may be suggesting or
creating a presumption in favour of Aboriginal
Peoples in the balancing of interests. The
possibility of a “two tier” system, one test for
disputes involving Aboriginal Peoples and one
test for other disputes, both in terms of granting
injunctions and enforcing them is a dangerous
development. If its direction is followed by
lower courts in Ontario or elsewhere,
exploration companies could be held hostage by
aboriginal communities who refuse to negotiate
and/or obey court orders and/or governments
who have not satisfied their duties. Also
concerning is that the Court of Appeal only truly
considers the principles of the rule of law in the
injunction context and not in the contempt
context.
It must be remembered that this case was about
sentencing only. Although the comments about
the law of injunctions are of serious concern, the
decision is not binding on those points.
2
Hill v. Minister of Forests
txt/ca/98/03/c98-0398.txt
http://www.courts.gov.bc.ca/jdb-
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Aboriginal Law Bulletin
(b) Contempt Sentences
author of his own incarceration. His decision
was consistent with his testimony: not only did
he swear under oath that he would continue to
break the law but, as a leader of AAFN, was
training and encouraging others to block public
roads and otherwise breach the injunction.
These aggravating circumstances are not
mentioned, or considered, in the Court of
Appeal’s decision.
R. v. Gladue is the authoritative decision
respecting the sentencing of aboriginal
offenders in the criminal law context. Although
acknowledging that Gladue was “focused
primarily on the serious problem of excessive
imprisonment of aboriginal peoples”, the Court
of Appeal applied the Gladue principles to the
sentencing for civil contempt of an injunction
order. The unique systemic and background
factors considered relevant by the Court were.
(a) The existing land claim negotiation
between the Algonquin Nation and Ontario.
What is difficult with this proposition is that
the AAFN is NOT part of the Algonquin
land claim negotiations between the AOO
and Ontario/Canada and have not made an
independent
claim.
This
factual
misstatement raises serious concerns about
the soundness of the decision; and
(b) AAFN The nature and content of the
province’s Mining Act which, according to
the Court, does not consider aboriginal land
claims or interests.
(c) Rule of Law
MacPherson J. set aside the custodial and
monetary components of the sentence for
contempt on the basis that the sentence was too
“harsh” for first offenders. The underpinning of
the motion judge’s decision was the importance
of the rule of law in a democratic society.
Fundamentally absent from the Court of
Appeal’s analysis is an acknowledgement of this
basic tenet and the fact that ACJ Cunningham
ordered that if the appellants agreed to “purge”
their contempt and obey the injunction the
custodial component could be discharged.
Lovelace, defiantly refusing to purge, was the
4
Equally perplexing is the Court’s comments
respecting the Shabot contemnors’ undertakings
of future compliance with the injunction and
how this informs the appropriate sentence for
the AAFN contemnors who refused to purge.
The Shabot contemnors’ undertakings were
made just prior to the contempt sentencing
hearing and after a finding of contempt. On the
basis of the undertakings, the company did not
pursue sanctions for their contempt. It was the
contempt proceedings, and undoubtedly the
prospect of incarceration, that led to the
undertakings. It was only as a result of the
undertakings that negotiations could, and did,
ensue. To suggest, as the Court did, that there
was any “progress” being made with AAFN, or
that there could be any progress so long as
Lovelace refused to obey the law defies
credulity. It is difficult to imagine how there
could be any meaningful discussions or
negotiations between the company and AAFN
as long as AAFN and its leaders continued to
defy the law.
Conclusion
Dialogue,
discussion,
consultation
and
accommodation are the preferred approach for
industry and Aboriginal Peoples alike. The
simple reality, however, is that it will sometimes
be necessary for private rights holders to resort
to the courts when negotiations with aboriginal
communities are not possible or have been
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unsuccessful. Indeed in these circumstances,
court proceedings can facilitate discussion and
resolution. Although the Court of Appeal
concluded that the sentence was too harsh in the
circumstances, it did not say that there should be
no consequences for showing contempt for a
Court order. The Court’s ruling appears,
however, to have inferentially endorsed a
manner of “self help” and in so doing may have
eroded the rule of law as it relates to injunctions
and their enforcement vis-à-vis aboriginal
contemnors. Instead of encouraging conciliation
and resolution, the Court’s decision is more
likely to have the opposite effect by
encouraging further contemptuous behaviour in
difficult situations because of a perceived lack
of threat of any meaningful sanction for
contempt.
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