The Tragic Wounding of Ontario’s Mining Industry

PART 2

                                  GINOOGAMING PART 2

The Ontario Superior Court of Justice Rules in Favour of Ginoogaming: In a Decision That Infantilizes Ginoogaming Members, the Court Rules That Because of Their Anishinaabe Culture They Couldn’t Read and Properly Comprehend Letters and Emails and Therefore They Were Not Properly Consulted Before the Quaternary Mining Exploration Permit Was Issued.

(The writer assumes that the reader has read and will keep in mind my Ginoogaming Part 1 article, The Tragic Wrecking of Ontario’s Mining Industry, dated April 3rd, 2021, so I will endeavour, to the extent possible, not to repeat facts and arguments stated in that article. I use “Quaternary” and “Mr. Malouf” interchangeably, each term in effect referring to the other.)

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The concrete life of the individual is destroyed in order that the abstract idea of the whole may drag out its sorry existence– Friedrich Schiller

I am always and at once on the defensive when people speak of races and nations as if they were personalities and had souls and destinies. – Christopher Hitchens

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The injunction motion was argued on June 1st, 2021. The decision, Ginoogaming First Nation v. Her Majesty The Queen In Right of et al., 2021 ONSC 5866 (CanLII), was released by the Court on September 1st. The presiding Judge was Madame Justice Susan Vella, who was appointed to the Superior Court of Justice in 2020. When in private practise, according to the federal government’s short biography of her which was part of their announcement of her appointment, she “served as Commission Counsel to the Ipperwash Inquiry and Initial Lead Commission Counsel into the Missing and Murdered Indigenous Women and Girls Inquiry.”

(The Executive Summary of the Final Report of the Missing and Murdered Indigenous Women and Girls Inquiry, at https://www.mmiwg-ffada.ca/wp-content/uploads/2019/06/Executive_Summary.pdf, accuses Canada of past and present “acts of genocide of Indigenous peoples”, allegedly enabled by “settler colonialist structures.”

The Ontario Superior Court of Justice would be, in the world of the MMIWGI a “settler colonialist structure”.)

It was a Zoom hearing. Justice Vella heard the day-long arguments in her Toronto office. Hung conspicuously on the wall behind her and visible to the litigants all day was a very nice, colourful Aboriginal art print.

She accepted all of Ginoogaming’s flimsy, bald, untested factual assertions and most of their key legal arguments, and issued an Order that extended an earlier “standstill” injunctive Order until January, 2022, at which time Ontario and Ginoogaming are to attend before her and give her an update on the further consultation she ordered them to engage in in the interim. And this despite Ginoogaming’s position throughout that they weren’t interested in consultation- rather they wanted a veto over the Ferau project lands, and ultimately those lands for themselves! Inexplicably, Quaternary and Mr. Malouf, the parties most affected by her injunction Order, and who generally have legal and customary obligations to engage in ongoing consultations with affected First Nations, were not ordered to attend before her! (Quaternary and Mr. Malouf are parties to the action, being sued for $80,000,000! How could they be reasonably left out of this meeting?)

Mr. Malouf is forbidden from exploring his mining claims, practically speaking, indefinitely. Justice Vella ruled that she was “not persuaded” by anything he swore to or argued regarding his numerous spurned attempts to engage in consultations with Ginoogaming from 2011 onwards, and regarding the grave inconveniences and harms his companies would suffer if the injunction were granted.  And, adding insult to Mr. Malouf’s injury in this regard, she refused to consider anything he did regarding consultations for the entire period from 2011 to July 2018, because, as she said, “…as the Crown takes the position it did not delegate the discharge of its duty to consult to Mr. Malouf, I will not include the communications and interactions initiated by Mr. Malouf.” (!)

This deeming of seven years of highly relevant, sworn testimony- all completely favourable to Mr. Malouf and completely damning of Ginoogaming- this refusal by the Judge to consider the reams of consultation information he provided to them- this refusal to consider his numerous, usually-rebuffed entreaties to Ginoogaming to tell him their concerns- this refusal by the Judge to consider their arrogant assertion to the effect that “we don’t have to tell you” our concerns- this refusal by her to consider all his attempts to talk and consult with them- constituted, in my opinion a complete  juridical cop-out by the Judge, and was made even more wrong and unjust by the fact that section 78 of the Mining Act itself requires every applicant for an exploration permit to engage in “consultation” with all nearby First Nations and to show the Ministry in its application the nature and extent of this “consultation.” The Mining Act itself delegates to Mr. Malouf the duty and obligation to do just what he did.

If, as the Judge said, a Crown lawyer made this statement about not delegating any part of the duty to consult to Mr. Malouf, and just left it at that, (I’m not sure if this statement was made or not. The Crown’s submissions were so dry and seemingly indifferent to Mr. Malouf’s unjust situation that I was mentally drifting during them), then this was a harmful and misleading statement to the Court made by that lawyer. There were other statements harmful to Mr. Malouf and to the public interest made by Ontario’s lawyers. (See below.)

Justice Vella referred to Canadians like Mr. Malouf as “settlors”, a highly politicized term, not part of the record, which she declined to define, even though he was born in Canada and has lived almost his entire life in Geraldton.

(“This is how the Indian Industry- with these essentially empty word constructs- these meaningless abstractions, euphemisms and stereotypes, falsely portrays European migrators to Canada: as “colonizers”, “settlers”, “exploiters” and ‘imperialists”- fictional “ism” people who should be regarded as essentially knowing, callous culture killers and land thieves.”– From chapter 12, The Essential Humanity of the Migrators to Canada, of my book There Is No Difference, at thereisnodifference.ca.

This is not to suggest that Madame Justice Vella is a member of the “Indian Industry”!)

This legal action, as framed by Ginoogaming’s top Toronto lawyers, was not principally about whether Ginoogaming had been properly consulted and accommodated. In their Statement of Claim and in their legal arguments before the Court on June 1st Ginoogaming was claiming a veto on any mining activity whatsoever taking place on Mr. Malouf’s mining claims. Their Statement of Claim asserted that “no mineral exploration and development or any industrial activity is acceptable” in their so-called, (as of 2020 only- never before that), “Wiisinin Zaahgi’igan”.

They argued that issuing the permit itself in 2019 was in and of itself a breach of the “Honour of the Crown”. They argued, as they claimed in the opening paragraphs of their Statement of Claim, that they had an “Aboriginal Sacred Areas Right” and an “Aboriginal Sacred Practices Right” that, upon their mere, totally subjective, random. discretionary assertion of same, trumped Mr. Malouf’s rights under the Mining Act, and in fact trumped the Mining Act itself, and permitted them to legally veto his exploration activities to the point of cancelling or expropriating his entire investment and life’s work!

And notwithstanding that there is no legal precedent for their claims, and much legal precedent to the contrary, (see Ginoogaming Part 1,) she ruled that “whether spiritual rights have been surrendered under Treaty 9 raises a serious issue for trial.”

This may be the case that it is a “serious issue for trial”, but it is such a legal longshot, without precedent in our laws, (at least yet), that in my opinion it should not have formed the basis for the Court to casually and indifferently shut the 75 year-old Mr. Malouf down in the probably years-long interim before trial, thus effectively wiping out his life’s work and hopes and dreams, probably for the rest of his life.

As stated, Ginoogaming, in its Statement of Claim and in their argument on the injunction motion, defined this legal action as primarily a “spiritual rights” case, in which, because they wanted a veto over the lands and ownership of the lands themselves, the nature and degree of consultation and accommodation was irrelevant to them. One of their lawyers, Kate Kempton, confirmed this is in a CBC interview after the Decision was handed down, (https://www.cbc.ca/news/canada/thunder-bay/ginoogaming-injunction-granted-1.6164824), which Decision she rightly characterized as “perplexing”.  She said:

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

The CBC article further stated:

Ginoogaming’s lawyer Kate Kempton also signalled that she expects a long legal battle ahead unless the Crown acknowledges that it should never have issued the early exploration permits and “offers to buy out and retire” the mineral claims in the First Nations sacred area. She said that could result in a longer- term agreement with Ontario to permanently withdraw Wiisinin Zaahgi’igan from industrial development.

I watched the argument of the motion on Zoom and took some notes. My notes indicate that Ginoogaming’s first of three lawyers to argue, Mr. Shefman, said that “the issue of the breach of duty to consult is not an issue.” (Italics mine) He said that the “asserted sacred rights area” is the issue.

The second lawyer, Mr. Evans, argued that “development cannot occur… “there can be no development in Wiisinin Zaahgi’igan…the Ferau project cannot go forward…the Province must withdraw the area from permitting…the project cannot proceed, full stop!”

The third lawyer for Ginoogaming, Ms. Kempton, argued: “The Crown acted dishonourably by issuing the exploration permit…Ginoogaming’s sacred area rights are rights outside the treaty…they exist outside of Treaty 9…no case bars what we are pleading…It was dishonourable for the Province to fail to pay the costs to provide the evidence (of specific cultural sites) the Crown wanted.”

Justice Vella even acknowledged all this in her Decision. She said that “Quaternary…in a manner of speaking, (is) caught in the middle between the Crown and Ginoogaming who are seemingly at an impasse.” (Italics added) She also said:

If from the perspective of Ginoogaming, it is all or nothing at the end of the day, then perhaps Ginoogaming will have foreclosed the opportunity for accommodation short of being ceded the land comprising Wiisinin Zaahgi’igan. However that issue is not before me.

No!

As confirmed by Ginoogaming’s own lawyers in their Statement of Claim, in their arguments before the Court, in Ms. Kempton’s CBC interview, that was the exact underlying legal issue that was before her! Her entire injunction motion analysis should have been based on this radical, “all or nothing”, unprecedented, attempted land-grab, in relation to which, because Ginoogaming was not interested in consultation, had brought them and the Crown to “an impasse.”

Instead, the Judge, seemingly incapable of doing this, self-diverted her attention away from this profound, unsettling and unprecedented issue and situation, and, unbidden and in fact waved off by Ginoogaming’s lawyers appearing  before her, skated on her own into the much more familiar and easier-to-deal-with area of whether the Province of Ontario had meaningfully and adequately consulted and accommodated Ginoogaming before issuing the 2019 mining exploration permit to Quaternary, and on this unbidden issue, brought to fruition both her clearly Edenic view of Ginoogaming and, a conclusion I arrive at from reading her Decision as a whole,  and in particular from the very high and strict evidentiary standards and requirements she placed on Mr. Malouf, but, in my opinion not on Ginoogaming, (see below), her clearly pre-existing predilection for Ginoogaming and for whatever might be their Aboriginal rights claims.

Totally buying into this, to me, completely artificial and cleverly and cynically- fabricated view of modern Indigenous culture, which clearly in reality, especially amongst their thoroughly assimilated and highly skilled and clever business elites, (which included here all of Ginoogaming’s witnesses), is as grasping, literacy-intensive, high-tech and capitalist as is modern non-Indigenous culture, Justice Vella wrote:

Having reviewed the evidentiary record, there is a serious issue with respect to whether the Crown has carried out a meaningfully consultation with Ginoogaming in advance of issuing the Ferau Permit. The initial notice provided by way of letter, with the follow up email, does not seem to me to be effective communication with Ginoogaming. Elder (sic) Victor Chapais deposed in his affidavit, “we try and deal with issues through talking in a circle. We take our time to understand other people’s perspectives. We did everything we could to be diplomatic in an Anishinaabe way: through talking, listening and trying to reach an understanding.”

In Conrad Chapais’ affidavit, he deposed that it is not the Anishinaabe way to contradict people (i.e.bluntly raise objections) and that it is very important to listen. Further, a lot of value is placed in the Anishinaabe culture of trying to reach a mutual understanding and agreement, “so that everyone owns the decision and freely accepts it.”

Critically, the evidence also demonstrates, from Ginoogaming’s perspective, that for the Anishinabek, “silence doesn’t mean agreement or indifference.”

Letter writing has seemingly been an ineffective form of communication and therefore puts into question whether one letter and follow up email leading up to the approval of the 2019 Ferau Permit was “meaningful” consultation. The lack of attendance at Ginoogaming (acknowledging that the COVID 19 pandemic made this impossible) also likely did not help. Meaningful consultation must consider the cultural context of the engaged Indigenous form of communication and consultation where the emphasis is on speaking and active listening with a view to developing a mutual understanding and, hopefully, a resolution.

Letter writing, while a convenient way to paper communication, is not necessarily adequate in the Indigenous cultural context within which governments must deal, and ineffective within the Anishinabek cultural context as described in the evidentiary record by Ginoogaming’s witnesses.

What totally unsupported-in-the-record, judicial reasoning!

Aside from the airy assertions regarding an undemonstrated, merely baldly asserted, distinct Anishinabek culture in general, neither the Ginoogaming witnesses nor their lawyers complained about the “effectiveness”, “meaningfulness” or “adequacy” of letters or emails as having been, along with consensual Zoom meetings, the main and necessary means of communication amongst the parties before the commencement of Ginoogaming’s legal action. Ginoogaming’s Statement of Claim contained no claims or complaints about this. Neither did their affidavit evidence. This faulty and unsupported reasoning was imported “out of the blue” by the Judge, again, in my opinion, as a reflection of her Edenic view of the Ginoogaming “people”, (the Judge’s word- as if they are people of a foreign nation rather than just ordinary Canadians), and, again, based on my reading of her Decision as a whole, her pre-existing and uncritical predilection towards them and their legal claims.

(As to the Judge’s view that Aboriginal Canadians, because of their alleged “race”, (a concept with no scientific validity), are inherently culturally different from the rest of Canadians:

“There is such uniformity in the state of man, considered apart from adventitious and separable decorations and disguises, that there is scarce any possibility of good or ill, but is common to human kind…We are all prompted by the same motives, all deceived by the same fallacies, all animated by hope, obstructed by danger, entangled by desire, and seduced by pleasure.”  -Samuel Johnson

There Is No Difference!)

It is not right or fair for a Judge, as in my opinion this Judge wrongly did here, to make a decision based on facts and arguments not alleged or argued by the litigants- facts and argument imported “out of the blue”-and facts, arguments and legal conclusions of which the parties were never told by the Judge and never given an opportunity by the Judge to make submissions on.

The record showed that the only person ever really interested in “speaking and active listening” was Michael Malouf, but all his laudable efforts in this regard were ignored or otherwise frustrated by Ginoogaming and for which he was given little credit by the Judge.

When Ginoogaming learned that Mr. Malouf was finally going to commence his very minor exploration work under his permit in June of 2020, rather than “talking and listening and trying to reach an understanding” the first and only thing they did was run off to their high-powered Toronto lawyers, who promptly sent out veto-claiming, “our way or the highway” letters!

Some speaking and active listening!

Some “developing a mutual understanding”!

But the Judge preferred her Edenic abstractions about “the Anishinaabe way” over these and numerous similar, concrete facts that were all in front of her.

And what a harmful and impractical precedent- a precedent that disregards the entire texture of reality-business and otherwise- that Justice Vella has set.

It also, as the title to this essay suggests, infantilizes the Ginoogaming “people”- in effect unintentionally insulting them- by wrongly suggesting that they are still existing in a tribal, pre-literate cultural state and as such can’t properly comprehend written communications. This is so untrue!

Also, ruling, without legal precedent and contrary to all established practise, that letters and emails-written communications in general- are “not necessarily adequate in the Indigenous cultural context within which governments must deal and ineffective within the Anishinaabe context” hands to all Indigenous groups a Court-endorsed excuse to avoid the consequences of their wilful refusal to engage in consultation, as here. They can now argue in effect:

“In your efforts to consult with us you communicated with us by letters and emails. While we didn’t complain about this at the time, and primarily used letters and emails ourselves, we now say that those written communications were not culturally appropriate for us and were thus inadequate and ineffective. You didn’t come to us and “talk and listen” in accordance with the Anishinaabe way. You’ll soon be hearing, no doubt by written letters, emails and Statement of Claim, from our Toronto lawyers!”

Continuing on with her unbidden “inadequate consultation” theme, she wrote in her Decision:

Given the seriousness of the claims advanced by Ginoogaming, the length of time devoted to these consultations seems inadequate. The consultations only started at the earliest, with the provision of notice in July 2018, and any form of engagement (meaning two-way dialogue) did not start until the summer of 2019 after the Ferau permit was approved. The pandemic has intervened, and no doubt has significantly hampered efforts to engage in meaningful consultation. By way of contrast, in Ktunaxa, there had been two decades of consultations. I am not suggesting what the correct time period is for this matter- it will be dependent on many factors. However, whatever that time period is, it has not yet been optimized.

In my opinion there are several things legally very wrong with this reasoning.

It ignores all the evidence and arguments before the Court to the effect that Ginoogaming did not want consultation and they acted accordingly. They only wanted and continue to only want a veto and ownership of the Ferau permit lands themselves. Their demanding, uncooperative behaviour had, as the Judge found, created “an impasse.”

It ignores the fact that the 2019 permit was a renewal of the 2016 permit, both of which permits Ginoogaming did not object to before they were issued.

It ignores the fact that the “sacred areas- sacred rights” claims were not even in existence in either 2016 or 2019! The uncontradicted evidence before Her Honour was that no one had advanced these claims at those times. These “sacred” claims were only first advanced by Ginoogaming in the summer of 2020, about a year after the 2019 permit was issued, and about four years after the similar 2016 permit was issued.  There were no such “sacred” claims to consult about in 2019 or at any earlier time!

It ignores the fact that, in any event, two years is a ridiculously long time for a consultation over the issuance of a mere mining exploration permit to be reasonably expected to last. Again, this assertion disregards and is seemingly oblivious to the entire substance and texture of business reality.

The Province of Ontario, to its great discredit, and adding to the serious harm already being caused by it to the mining industry as a result of its shameful and dangerous, sovereignty-surrendering and Munich-like policies and practices in its dealings with Indigenous groups, (discussed at length in Ginoogaming Part 1) essentially abandoned Mr. Malouf to his own brave, self-represented devices.

This was my plea to Ontario in Ginoogaming Part 1:

“For a change Ontario must stand up for and defend its grant of mining licences, enforce treaty obligations owed to the Crown, defend its lifeblood!-the Crown revenue– and enforce the rule of law generally.  Not to do so would be to improperly and shamefully derogate from its grant of those licences-fail to legally stand behind them- and cause economic harm not only to itself but to those mining companies which must rely on the legal and economic certainty of them. Standing up for the legal force and effect of their grants would also give much-needed confidence to present and future mining investors that they are investing in a stable and predictable marketplace. As Mr. Malouf swore in this affidavit:

“Thirty-five years of hard work, passion and a great deal of money has been invested in the Hardrock property. If the plaintiff is successful in stopping exploration on Hardrock’s Ferau Project property in the McBean Lake Area until the eventual resolution of our lawsuit, our family and the shareholders of Hardrock will have lost our entire investment. No mining company will want to have anything to do with the rest of the Hardrock property for fear of being held up for years in litigation by the plaintiff. A great deal is at stake, not only for the defendants but for the Province, the exploration industry and the community at large.”

My plea to Ontario clearly fell on deaf ears and blind eyes.

Ontario’s defence of itself, its sovereignty, its Treaty rights, the legal force and effect of its grants of rights in Crown land, in particular Mr. Malouf’s Mining Act rights, was weak and tepid at best.

Ontario’s lawyers would not back up Mr. Malouf in Court.

They restricted their arguments to dry, safe, politically neutral, technical ones, focussing solely on Ontario.

They made several unnecessary and legally disastrous admissions and concessions, which the Judge seized upon to the harm of the public interest and to the predictable hurt and prejudice of Mr. Malouf.

As the Judge found:

The Crown only took a position with respect to its duty to consult and accommodate and any irreparable harm within that context but did not otherwise take a position with respect to irreparable harm or the balance of convenience. It also took no position with respect to Ginoogaming’s motion as against the other parties.

The balance of convenience test in an injunction requires the Judge to determine who would suffer greater harm if the injunction was granted. In this case, who would suffer the greater harm, Ginoogaming or Mr. Malouf?

Obviously here, Mr. Malouf!

Ginoogaming could not possibly suffer real harm if the mining-industrial activity status quo, which has existed for the past 100 years, which the record showed Ginoogaming members have participated in, was kept in place by the Judge until the trial of this action. But to Ontario’s shame it could not bring itself to assert this basic fact in Court. It was not interested in helping its licensee, Mr. Malouf, defend his rights under their duly-authorized and issued exploration permit!

In this regard the Judge ruled that:

 “…based on the evidentiary record…the proposed mining exploration activities could reasonably result in a destruction of grave sites, and the destruction of other sites of spiritual and cultural significance…of important wildlife and plant life and thus also interfere with the First Nations Aboriginal and/or Treaty Rights…”

But the existence of all these supposed “sites” was and is mere speculation! Ginooganing had four years to come up with something specific in this regard and couldn’t. There was nothing in the evidentiary record in this regard but fact-free, self-serving, bald assertions to support what the Judge ruled here. Even the so-called expert reports Ginoogaming commissioned at the eleventh hour came up with nothing substantive or specific! The “irreparable harm” found here was based on imaginings.

And the so-called “Aboriginal and/or Treaty right that the Judge ruled might be “irreparably harmed” -the alleged “sacred rights” set out in the Statement of Claim- are as stated, not rights presently recognized under Canadian law!

Ontario should have made these arguments but didn’t.

Shockingly, Ontario “took no position” with respect to Ginoogaming’s motion against Mr. Malouf generally. It was if they were embarrassed to be legally associated with him; their licensee! In other words, they “took no position” on Ginoogaming’s radical, unprecedented claim for a veto over Mr. Malouf’s Crown-granted mining rights based on Ginoogaming’s random, subjective, discretionary, very last-minute, obviously wholly opportunistic “sacred area” and “sacred rights” claims.

They “took no position” on a motion claim that, if allowed, would likely financially wipe out their licensee and render stillborn a potentially important source of future Crown revenue! They “took no position” on this “spiritual rights” case that if Ginoogaming succeeded on this issue at trial then Ontario’s mining industry would be further devastated by the shakedown implications of it.

They should have mounted a full-throated defence of Mr. Malouf and his rights and his righteous conduct throughout. They should have tried to knock Ginoogaming’s essentially weak, destructive, “sacred area and sacred rights” claim- a claim that the true motive for which was to get the Ferau project lands for themselves so they can exploit it– right out of the legal park. Instead, they kept their heads down on this crucial issue and let Mr. Malouf fight their battle on his own! So selfish, self-harming, harming to their licensee, harming to the mining industry generally, and so dishonourable!

Ontario foolishly conceded that “Wiisinin Zaahgi’igan” was something that contained a semblance of reality. As the Judge wrote:

For the purposes of this motion the Crown accepts that Wiisinin Zaahgi’igan is a place that contains locations of cultural and spiritual importance to members of Ginoogaming.

Why would the Crown make such a foolish and destructive (to both their interests and Mr. Malouf’s) concession?

The record before the Judge was to the effect that in the entire 100-year mining history of the area no one had ever heard of “Wiisinin Zaahgi’gan” before the summer of 2020. No Ginoogaming member had ever mentioned it before then. Despite numerous requests and opportunities given by Ontario and Mr. Malouf Ginoogaming was unable and/or unwilling to identify any burial grounds or other “cultural and spiritual” sites whatsoever.

Ginoogaming said that they needed to hire outside experts to locate these sites. Why was that? They professed to have their “Elders” and “Knowledge Keepers”. If these sites actually existed, (It’s hard to imagine dug graves in the rocky, forested and swampy wilderness terrain of the Canadian Shield.), why didn’t these people know about them and where they were? With these and more obvious realities in mind, including the very real possibility that “Wiisinin Zaahgi’igan” was a mere fiction very recently created for the sole purpose of ginning up Ginoogaming’s claim to have the Ferau project lands transferred to them, it was irrational, harmful and weak for Ontario to make this admission, which was clearly against its own interests and so harmful to their licensee, Mr. Malouf.

The motions Judge wrote:

In addition, Wiisinin Zaahgi-igan has been described in the evidence as the community’s breadbasket. Ginnoogaming describes this area as their primary place for hunting, fishing, and other harvesting activities. Again, the Crown does not dispute this, and the Prospecting Companies have not persuaded me to the contrary. (italics added)

Why did Ontario “not dispute” that? Why didn’t they disagree with it? Why didn’t they side with Mr. Malouf on this, who swore that in all the decades he was physically involved with his claims he rarely saw or heard any Ginoogaming members there. Maybe had they sided with him the Judge, who, as stated, for no reasons given, was “not persuaded” by Mr. Malouf, would have had a harder time brushing off Mr. Malouf’s cogent evidence on this important point. And what is a “breadbasket” anyway? Why would Ontario concede such an unlikely, unreal assertion? Surely Ginoogaming’s “breadbasket” is the same as everyone else’s in the general area: the grocery store in Geraldton!

Mr. Malouf was more or less abandoned by Ontario in this motion in which they had such a high degree of common interests.

Mr. Malouf was also given a pretty hard time by the Judge in parts of her Decision.

She held him, a self-represented litigant, to far higher and legalistic evidentiary standards and requirements than she held the Ginoogaming witnesses to.

Ginoogaming witnesses and their lawyers baldly made assertion that had little or no cogent and coherent facts or evidence in support- that disregarded the basis texture of reality- which assertions were often made on the basis of hearsay and otherwise completely untested evidence, which assertions were lightly and casually accepted as true by Justice Vella, including but not limited to the following:

-that “Wiisinin Zaahgi’igan” actually exists;

-that it is Ginoogaming’s “breadbasket”;

-that it contains “grave sites” and “sites of spiritual and cultural significance”, the mining exploration of which could “reasonably result” in the “destruction” of them;

-that outside “experts” “seem necessary” to find them;

-that psychological and emotional distress, the only harm that could be suffered by a Ginoogaming member as the result of one of these speculative sites being damaged or destroyed, is a greater harm than actual financial harm and loss that Mr. Malouf will suffer if the injunction were to be ordered; and

-that there is such a thing as a distinct, authentic, intact Anishinaabe culture, separate and distinct from ordinary “Canadian” culture, prime features of which are a main emphasis on face to face talking and low reading comprehension.

For some unknown reason Mr. Malouf’s evidence received no such easy deference and acceptance.

In analysing his “balance of convenience” evidence, where he was essentially saying under oath that he would be far more inconvenienced and harmed by the issuance of the injunction than Ginoogaming would be inconvenienced and harmed if it wasn’t issued –(nothing would change for them but he would be almost put out of business)- she criticized him for not “updating the status” (presumably to the date of the motion hearing), regarding a potential purchaser of his claims about whom he referred to in his affidavit sworn months before the day the motion was argued. (How could he possibly “update the status” here? The Rules of Civil Procedure don’t permit the filing of “last minute” affidavits.)

She criticized him for not tendering “evidence of other potential purchasers or major investors who have been discouraged due to these ongoing proceedings.”

She in effect questioned the veracity of his sworn evidence to the effect that his related company, Hardrock, had invested approximately $7.3 million dollars in the Ferau project lands, saying that “Mr. Malouf offers no evidence of this other than his own bald statement and a document prepared for the purposes of this litigation.”

She in effect questioned the veracity of his sworn evidence to the effect that Quaternary is in significant debt to members of his family. She said: “However, again, aside from his bald statement in his affidavit, there is no evidence of the financial status of Quaternary, or whether this company will go bankrupt if the interlocutory injunction is granted.”

She in effect questioned his business judgment in relation to business decisions he made and did not make and business actions he took and did not take in relation to the permitting and exploration of his all of his claims, including claims that are not part of the Ferau project lands, thereby in effect purporting to substitute and prefer her own business judgment (such as it might be) in these complicated business (not legal) matters to Mr. Malouf’s. This is something that Judge’s caution themselves against and rarely do.

She criticized him for not explaining why, even though his latter exploration permit was issued in 2019, he didn’t explain why Quaternary’s “plans changed” in that he indicated an intention to commence actual exploration activities only in 2020, instead of 2019. (Why would this be at all relevant to anything?) Again, the Judge is second-guessing a perfectly normal business decision.

She ominously noted, as if it were relevant to the issues of irreparable harm and balance of convenience, and as if there wasn’t an obvious explanation: “As well, no authorized early exploratory work has taken place to the date of this hearing.” Of course, that’s because of the lawsuit started by Ginoogaming and Mr. Malouf’s voluntary undertaking to “standstill” his activities, which the Judge well knew of, thus making this statement puzzling and unsettling.

She in effect criticized Mr. Malouf because he provided her with “no evidence from the Prospecting Companies as to what, if any work has been done by Quaternary in relation to the remaining tracts of the Hardrock Property which are the subject of approved early exploration permits also issued in 2019.” There was no indication from the Judge as to how this evidence might be relevant to Mr. Malouf’s frustrated attempts to explore the Ferau project lands and the harm he might suffer if he was enjoined from exploring those claims, which are the only claims that are the subject of the Ginoogaming Court action. Why should Mr. Malouf be expected to provide information about claims that are not the subject of the lawsuit?

Relying on an affidavit of a geologist hired by Ginoogaming to provide an analysis of Mr. Malouf’s analysis of the potential mineral value of his Ferau project claims, the Judge ruled: “In other words, there is no reliable information upon which Mr. Malouf can reliably estimate how much gold, if any, is likely in the Ferau Permit project lands within Wiisinin Zaahgi’igan.” (Italics mine)

In summary, Justice Vella, holding Mr. Malouf to a trial evidentiary standard of proof of pecuniary losses, (but accepting Ginoogaming’s “bald” statements about everything), dismissed, diminished and denigrated all of Mr. Malouf’s evidence relating to the potential minerals on his claims, using the word “speculative” to characterize it all.

She then offered him the cold comfort of her observation that, in any event, those minerals “are not going anywhere.”

No, they are not going anywhere. The 75-year-old Mr. Malouf, who has devoted 40 years of his life to unearth them, may never see them illuminated by the light of day. But no doubt, in the indeterminate future, some future mining company with the resources required to pay Ginoogaming’s danegeld demands, will see them.

Finally, offering some further business observations, Justice Vella wrote:

“There is nothing preventing Quaternary from exercising its authorized early exploration activities on these other blocks of land. Ginoogaming does not take issue with Quaternary exercising early exploration activities beyond Wiisinin Zaahgi’igan.”

Well, actually, there is something preventing this: Ginoogaming! And they do in fact take issue with Quaternary doing anything in this regard without their consent, which will only be given if Quaternary meets their financial and other demands.

On June 11th, only 10 days after this motion was argued, as if to rub his nose in it, Ginoogaming’s lawyer, Ms. Kempton, wrote Mr. Malouf and advised him that Ginoogaming “is prepared to consent (to mineral exploration) if there is adequate and meaningful accommodation set out in a legally binding document”. Attached was a draft “Company Exploration Agreement” which set out financial obligations to be paid to Ginoogaming which can only be described as onerous, impractical and totally unaffordable to the very beleaguered Mr. Malouf.

So, contrary to Justice Vella’s assurance in this regard, Mr. Malouf and Quaternary are or will be totally blocked from exploring these other claims, just as they are now blocked from exploring the Ferau project claims.

Mr. Malouf and his companies are more than just “caught in the middle” here. They are on the one side being let down by the Crown and on the other side aggressively attacked by Ginoogaming.

Lonely are the brave small players in today’s Ontario mining industry!

An injunction is an equitable remedy, and as such is subject to all the equitable arguments which can be raised in equitable matters, including the conduct of the parties, the “unclean hands” doctrine, and acquiescence and delay.

In this case Ginoogaming engaged in conduct that should have caused the Judge to refuse them an injunction. (See Ginoogaming Part 1.)

Their arrogant and self-entitled refusal to engage in consultations with either the Province or Mr. Malouf and their radical “impasse”- creating, “all or nothing” attitude generally, should have disentitled them to an injunction.

Their threats to engage in criminal behaviour if they didn’t get their way i.e., to blockade the Ferau project lands, should have caused the Court to invoke the “unclean hands” doctrine (“He who seeks equity must do equity.”) to deny them the injunction they sought.

Their huge delay in bringing the lawsuit and the injunction motion- well over a year from when the permit was issued in 2019 and well over four years from when the exact same 2016 permit was issued, should have caused the motions Judge to conclude that Ginoogaming was not in fact suffering “irreparable harm” as a result of the issuance of the permit, and that damages- financial compensation- would adequately compensate them in the event that they were to be successful at trial. If they were in fact suffering “irreparable harm” they would certainly have acted much more expeditiously.

In fact, in this latter regard, in their Statement of Claim Ginoogaming claimed against all parties, in the alternative, damages in the amount of $80 million, showing that they had already calculated how much money would adequately compensate them if they didn’t get the injunction. “Irreparable harm” is harm that cannot be compensated in money. But Ginoogaming admitted that $80 million would do the trick. Allowing Mr. Malouf to proceed with his extremely small bit of exploratory work would not have caused irreparable harm at all.

The Crown- Ontario- should have made all these equitable arguments. They made none of them.

In the same CBC News article that Ms. Kempton was interviewed for, Mr. Malouf was reported as saying: “This injunction, I feel, is the kiss of death for the (mining) industry.”

Tragically for Mr. Malouf and for all Ontarians, it’s a kiss that was and is being bestowed as much by our elected government in Toronto as by the First Nation.

September 15th, 2021.

Peter Best

Sudbury

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