Jail Will Now Be the Last Bridge We Cross When Aboriginal Rights and Mining Rights Come Into Conflict.

The role of the court of appeal is to check the power of judges and make undesirable outcomes less likely in future.

Clearly jailing First Nations leadership ( or membership for that matter) is an undesirable outcome when aboriginal and treaty rights and mining rights come into conflict.

And that outcome is a lot less likely today than yesterday in Ontario.

But are we really any farther ahead in answering the question: How should we resolve disputes between First Nation(s) with aboriginal and treaty rights and an outstanding land claim and a mining company who has staked claims in the First Nation's territory?

In a way. Courts do not legislate and legislation is what we need.


MNDM best take note of para 48 esp the words legislated solution. Broad hint?
48] The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.

But hints are not deeds and the Platinex claims remain on KI lands and the Mining Act is yet unchanged.

There is comfort in the fact that jail will be the last bridge we cross when First Nations and mining companies battle.

The extension of Gladue sentencing principles may ripple widely.

And perhaps mining companies will think twice before launching lawsuits to gain access to First Nation lands. Only the Crown can resolve the dispute between S. 35 rights and free entry. When that might happen remains anyone's guess.

So Temex( Did you see those eviction notices up in Neskantaga?) and all you other juniors having some trouble in Treaty No. 9 , time to sue the Crown for failing in its legal obligations.Just cut and paste the Platinex statement of claim. Faskens will be happy to help. Perhaps a corporate class action by the mining industry against the Crown.

This case set out a new stricter standard for the imposition of injunctions that “might have an adverse impact on asserted aboriginal and treaty rights.” (par. 43)
I can see a new law of aboriginal injunctions developing.

Lower court judge's better mind their manners when opining on the strength of a first nation land claim. You might say the burden of proof has shifted in a big way onto the Crown.A cynically timed letter from Minister Bryant's minions rejecting a land claim will not be enough next time we are in court.

And there will be a next time.

Nice to see judicial recognition of the fact that in place based struggles First Nations stand in a different legal "place" than environmental protests (with the greatest of respect to all my enviro friends out there) The lands at issue in the dispute with Platinex and Ontario are KI's place in a different legal way than for non aboriginal folks.

I like the reference to protest free zones. But the larger point is that all those who would stake mining claims without First Nation consent are trying to create an aboriginal and treaty rights free zone.

The general direction of the law remains- resolve aboriginal disputes by negotiation.

But will negotiation give First Nations the right to say no?

Maybe, just maybe, with the removal of the jail "hammer" in aboriginal versus mining co. disputes the distinction between a First Nations right to say no and the legal right to consultation, accommodation and reconciliation [read inevitable mining exploration and development project delays] becomes meaningless.



Take that greedheads.