(Part 2, describing the result of the injunction motion, follows of the conclusion of this Part 1.)
The Tragic Wounding of Ontario’s Mining Industry
Illustrating Many Falsities and Harms, including the Harm of “Unkindness”, of a Typical Indigenous, Treaty area “Consult and Accommodate” Claim
(Reading time- 30 minutes)
The Quaternary Mining & Exploration Company Limited (“Quaternary”) has a lawfully issued mining exploration permit to explore for minerals on its “Ferau project” mining claims and leases, situated just south of the Ginoogaming Indian Reserve, (“Ginoogaming”) near Longlac, Ontario. But Quaternary, Hardrock Extension Inc. (“Hardrock”), a related and interested company, and their President, Mr. Michael Malouf, along with the Province of Ontario and one other prospector in relation to a nearby property, William Kerr, were all sued on November 4th, 2020 by Ginoogaming for an injunction preventing them from starting their exploration work and for $80,000,000 in damages, thus putting an effective hold on their job-creating work plans and further, actually threatening to put Quaternary and Hardrock out of business.
Ginoogaming alleges in their Statement of Claim (“Claim”) that even though the Ferau project lands are on Crown lands, surrendered to the Crown in 1906 by Treaty 9, they are still on Ginoogaming “traditional territory”, which are “sacred areas” on which Ginoogaming band members have historically and presently engaged in “harvesting” and “sacred practices” and that all these constitute “Aboriginal and/or treaty rights” which were never surrendered, and which cannot now be infringed without their prior and informed consent. They assert that Quaternary’s exercise of its permit rights would mean that their “sacred areas and sacred practises…would be desecrated and the identity, cultural survival and psychosocial wellbeing of the people of Ginoogaming and the Nation as a whole would be irreparably harmed.” (No definition of “Nation” given.) They assert in effect that they have a lawful veto over whether Quaternary can exercise its Provincial permit rights, and they are exercising it to say “no”.
They claim an immediate injunction against Quaternary, asserting that any merely exploratory, mainly surface work Quaternary would do under it’s lawful permit would cause “irreparable harm” to their ill-defined “sacred areas” and “sacred rights” and that this harm outweighs the loss to Quaternary and Hardrock of their entire multi-million dollar investment and of their and Mr. Malouf’s future hopes and dreams, even though these allegedly pure and never-touched “sacred areas” have been mined and logged for a hundred years! (See below.)
This claim is a moral disgrace and of course a financial calamity for these private defendants and the Ontario economy, but sadly it’s a claim that is not unreasonably grounded in law- disastrous and harmful law.
The Supreme Court of Canada’s Haida Nation decision, which unilaterally and effectively amended Canada’s Constitution with no input from anyone representing the Canadian people, extended and expanded Indigenous rights to off-reserve, treaty-surrendered Crown lands- to the alleged “traditional territory” of each of Canada’s 635 Indian bands. (No definition of “traditional territory” so lots of confusing overlap and extra grist for lawyers’ mills.) It decreed that any natural resource project proponent must “consult and accommodate” any and all nearby Indian bands, (now fashionably but with little legal foundation called “First Nations”), before proceeding with its project. The result has been to create a national Indigenous shakedown industry, where no natural resource project can go ahead on private or public lands in Canada unless and until all nearby Indian bands have been given, in one disguised form or another, a free “piece of the action”.
Haida Nation delivered a devastating blow to Crown sovereignty. The practical effect of it has been to give Indigenous groups a de facto veto over resource development in Canada, thus seriously impairing our duly elected governments’ sovereign right to make laws to regulate the marketplace and manage the economy, and seriously damaging the economy itself.
The situation has been made even worse by our duly elected governments having rolled over and played dead in the face of the damaging, Crown sovereignty-diminishing Haida Nation case, and in many instances, enthusiastically embracing Haida Nation and taking it to economy-paralysing and country-dividing legislative and policy lengths that in my opinion the Supreme Court never intended or envisaged.
One example of this is Ontario’s entirely voluntary, foolish, legally unnecessary, self-emasculating amendments to the Mining Act in 2015 to legislatively approve and enshrine Haida Nation’s emasculation of Ontario’s hitherto sole right and power to make laws regulating the Ontario mining industry. Section 2 of the Mining Act was amended to state:
The purpose of this Act is to encourage prospecting, registration of mining claims and exploration for the development of mineral resources in a manner consistent with the recognition and affirmation of existing Aboriginal and treaty rights in section 35 of the Constitution Act, 1982, including the duty to consult, and to minimize the impact of these activities on public health and safety and the environment.
Unfortunately, the operation “on the ground” of the 2015 amending wording since then is completely defeating the purposes of the italicized wording, as shown below.
Section 78 of the Act was amended to require an applicant for an exploration permit to engage in “consultation” with all nearby First Nations bands and to show the Ministry in its application the nature and extent of this “consultation.” As will be shown below, this amendment too has had the mining investment-killing effect of giving to these First Nations bands leverage with which to extract unearned benefits from the applicant or to delay proposed ventures to the point of financial non-viability.
Section 86 of the Act, dealing with mining leases, was amended so as to deem every mining lease to contain the following provision;
The Lessee’s rights under this lease are subject to the protection provided for existing Aboriginal or treaty rights in section 35 of the Constitution Act 1982 and the Lessee shall conduct itself on the demised premises in a manner consistent with the protection provided to any such rights.
Now, in some confusing and chaotic manner, but nonetheless very real, because of Haida Nation and Ontario’s self-emasculating response to it, Ontario de facto shares with “First Nations” the power to regulate mining, the disastrous, shakedown effects of which are well illustrated below in the case of the innocent, unjustly victimized Quaternary and Hardrock. (For brevity and clarity’s sake this article focusses on Quaternary, Hardrock and Mr. Malouf, but likely generally applies to the situation of Mr. William Kerr as well.)
Added to the above is the existence of an effective ban on free speech on this profound and harmful new resource industry reality, based on fears of career-ending accusations of “racism.” So our business class, our politicians, our bureaucrats and any members of the media or academia with the wisdom and knowledge to see what is happening here, are all frightened into silence and inaction.
The ensuing discussion is based on the writer’s review of documents filed in the Court office in Toronto, the place where Ginoogaming chooses to litigate its legal claim. (Convenient and tactically shrewd for their Toronto lawyers but horrendously inconvenient for everybody else involved, all of whom live and work in the Longlac/Geraldton area, about 1200 kilometers away.) These documents include the filed pleadings of the parties, the notice of motion and accompanying affidavits of certain Ginoogaming band members, including their “expert” reports, filed in support of their motion for an immediate injunction prohibiting Quaternary from acting on its exploration permit, the affidavit of Mr. Michael Malouf of Quaternary, the affidavit of Mr. Kerr, the affidavit of Mr. Patrick Barnes on behalf of the Ontario Ministry of Energy, Northern Development and Mines (“ENDM”) and finally, Ginoogaming’s Factum, a thorough, complex, sophisticated and extremely “artful” legal argument put together by Ginoogaming’s high-powered Toronto lawyers.
The Ginoogaming Factum, in and of itself, shows the overwhelming, intimidating, dominating, cynical, juggernaut-like legal power Ginoogaming is able to employ against much weaker and defenceless small mining ventures like Quaternary. The notion that Ginoogaming could ever be the “ever so ‘umble” hard-done-by party in this situation is completely disabused by reading this fiercely aggressive, blitzkrieg-like Factum. It’s so aggressive that, like Germany blaming Poland in 1939 for Poland “forcing” Germany to invade it, Ginoogaming goes so far as to almost-laughably claim that “Ontario and Mr. Malouf took advantage of the power and financial imbalance between Ginoogaming and Ontario and the sense of helplessness engrained (sic) by generations of colonialism, forcing Ginoogaming to resort to stall tactics.”
Later in the Factum, illustrating further the “innocent Germany forced to invade” analogy, they allege that “Mr. Malouf and Ontario come to this court in this motion with unclean hands…Parties with unclean hands are not entitled to the court’s indulgence in this motion.” Begging the reader’s pardon, but Mr. Malouf does not “come” to the court. Mr. Malouf is forced- dragged!- into the court by Ginoogaming suing him and trying to ruin his companies and his dreams, after it admittedly “stalled” his five-year effort to consult with them, and after Ginoogaming threatened him with illegal blockades!
And in this legal situation, as Ginoogaming’s lawyers well know, the “clean hands” doctrine only applies to Ginoogaming, the party seeking the equitable remedy of an injunction. And certainly, admitting deliberate stall tactics and threatening illegal blockades is evidence of Ginoogaming not coming into the court with “clean hands.”
The Ginoogaming claim is typical of the many, many similar legal claims that are killing our resource industry and causing a flight of jobs and investment capital out of Canada. An examination of some of the aspects of this claim reveals the factual wasteland and the intellectual fraudulence underlying it and most of the similar others, and, when magnified across the country, highlights the great harm to our economy and to Canadian social unity being caused by the present laws and government policies in this profound area of Canadian life.
The claim refers to the “people” of Ginoogaming, all allegedly so aggrieved and threatened by the actions of Ontario in issuing the exploration permit and the extremely modest plans of Quaternary to act upon it.
But exactly what “people”?
The Government of Canada Indigenous Affairs website recently indicated that the total band membership of Ginoogaming is only 816 people, of whom only 173 actually live on the reserve. Such a tiny number of reserve residents should not, in any rational world, have the kind and quantity of deadly legal power Ginoogaming not unreasonably claims and is purporting to exercise.
The claim correctly states that Ginoogaming is a “beneficiary” of Treaty 9. But a treaty is a two-way street. They also have obligations under the Treaty, which they and similar Indigenous claimants in all these similar lawsuits consistently ignore and often violate. (See First Nations Blockade Violates Treaty Promises under Recent Posts, elsewhere on this website.)
Kwakigigickweang, Keneswabe, Matawagan and Odamagea, the Ginoogaming band leaders who signed the Treaty in 1906, indeed agreed with the Province of Ontario that they and their people could hunt, trap and fish on the lands they surrendered to the Crown- their “traditional territory”- but subject to government regulation and “saving and excepting such tracts as may be required or taken up from time to time for settlement, mining, lumbering, trading or other purposes.” (Emboldening added)
By the terms of Treaty 9 Ginoogaming arguably gave up the right to harvest on the Ferau project lands- lands “taken up” for mining- so their claim that mining exploration activities there would “infringe” this given-up and thus non-existent alleged right is arguably untenable.
And Treaty 9 makes no mention whatsoever, and it was never part of the treaty-making deliberations, that Ginoogaming band members would have the right to claim “sacred areas” in any part of the surrendered lands- in their alleged “traditional territory”- wherein they could engage in alleged “sacred practices” to the exclusion of all other lawful, public uses. These clearly are not treaty rights.
Knowing this full well, Ginoogaming’s lawyers, Olthuis Kleer Townshend (OKT Law), probably the most pre-eminent Indigenous law firm in Canada, claim in the alternative that these allegedly “sacred” things are “Aboriginal rights” the exercise of which pre-dated the passage of section 35(1) of the Constitution Act 1982, were still being practised in 1982, and thus were “existing rights” of Aboriginal people that were “recognized and affirmed” by section 35(1) of the Constitution Act, 1982. These skilled and experienced Toronto lawyers smartly allege that these things are constitutional rights, as opposed to treaty rights, which Ginoogaming band members have the right to exercise in priority to or even to the exclusion of all other lawful, public uses(!)
There is precedent for our Courts having regard to Aboriginal spiritual beliefs in the context of consultation and accommodation negotiations between the Crown and an Indigenous group in relation to a proposed resource project.
But there’s no precedent for that Indigenous group having the power to veto the project because they believe that the practice of their religious or spiritual beliefs might be impaired or frustrated because of the project. There’s no precedent for them being legally able to say: “We don’t care how much you consult with us and offer to accommodate us, we say no!”
There’s no precedent for them being able to unilaterally veto lawful activities on Provincial/Crown/ public land on those dictatorial grounds. Section 35 only “guarantees a process, not a particular result.” (Ktunaxa Nation vs. British Columbia 2017 SCC 54) Ginoogaming is claiming that unilateral veto right- demanding that “particular result” that they want and saying to hell with the more-than-adequate consultation already offered and to hell with all competing interests.
In Ktunaxa, advanced as a Charter of Rights freedom of religion case, the Supreme Court of Canada ruled that the Ktunaxa First Nation’s belief that their “grizzly bear spirit” occupied B.C.’s Jumbo Valley could not prevent a ski resort from being built there. The Court said that “the Charter protects the freedom to worship, but does not protect the spiritual focal point of worship,” i.e. the actual “spirit-based” physical place where the “sacredness” is focussed and/or where the worship of the “sacredness” actually takes place.
The restrained and restrictive approach to religious or “sacred”-based Indigenous claims taken by the Supreme Court in Ktunaxa does not augur well in the long term for Ginoogaming’s sacred-based claims in the situation under discussion here.
And their esteemed aboriginal law specialists, OKT Law, would likely privately acknowledge that they would have a steep legal hill to climb here in the unlikely event that this case ever went to an actual trial, which would, in the normal course of Toronto-based civil litigation, be years from now. (But that is likely basically irrelevant to Ginoogaming. Their goal is most likely to win the injunction and then stall the progress of the litigation so much that the defendants, especially the private defendants facing financial ruin because of the delay, will be forced to settle on Ginoogaming’s terms.)
OKT Law wrote a highly regarded textbook, Aboriginal Law Handbook, in which they write at page 62 of the 5th edition:
Archaeological and cultural rights (italics added) have not received much attention from the Canadian courts. Generally, the courts have not dealt with these rights as Aboriginal and treaty rights under the Canadian constitution. Instead, these issues are dealt with under the statutory provisions that govern the treatment of human remains and cultural objects, such as the Heritage Conservation Act of British Columbia, the Historical Resources Act of Alberta, or the Funeral, Burial and Cremation Services Act of Ontario. Under these statutes, First Nations may be able to assert some rights to control what happens to archaeological artifacts and human remains that are discovered in an archaeological dig.
They also wrote at page 63:
In theory, there are few restrictions on the types of rights that can be protected by s. 35 other than tests set out for proving Aboriginal and treaty rights. However, over the years, the courts have made a number of findings that suggest that they will take a fairly restrictive approach about what types of rights will be protected by s. 35. (italics added)
OKT Law in their textbook also cited the Ontario court case, Hiawatha Indian Band v. Ontario (Ministry of the Environment), 2007, Carswell Ont. 738 (Ontario Divisional Court), where the Court restrictively read the “land surrender” clause in the 1923 Ontario Williams Treaty “to mean that a First Nation is giving up forever any right to have any say over what happens to the remains of their ancestors in their traditional territory.”
As the Divisional Court said in this regard:
The Cemeteries Act and Regulations thereto establish a comprehensive and inclusive means of protecting aboriginal remains.
In other words, unless the Indigenous band can link their demand to be consulted with some alleged threat to the wellbeing of their treaty “harvesting” rights, there’s no duty to consult regarding “sacred” matters only, and applicable federal or provincial statute law governs.
This is especially the case here where Ginoogaming is not even demanding the right to be consulted. They are demanding an absolute, prior, legal veto, which has never been given by any Canadian court to an Indigenous band.
So Ginoogaming’s essentially cultural “sacred”-based legal claims are unsupported by precedent, and what precedent there is generally goes against them.
The rationale underlying their claims, if accepted by a Court, would literally put an end to Canada’s resource economy and the tax revenues derived by our governments- the life blood of our governments’ existence– from it.
And not just its legal claims but its factual claims are highly suspect.
A review of the history of the area shows that these “sacred” claims are merely recently invented, romantic fantasies cynically designed to gin up and give a false air of legitimacy and sympathetic touchy-feelingness to what are essentially cold and calculated land, power and money grabs initiated by Ginoogaming with the long term goal of either extracting the maximum amount of “rent”- money and other material benefits- danegeld– from Quaternary, Hardrock and Ontario, or gaining the Ferau project lands for themselves. (see below)
Taking their claim to its logical conclusion, they are asserting that Treaty 9 was in effect a land “sharing” agreement, as opposed to a land surrender agreement, and that in any dispute between Ginoogaming and the Province of Ontario about what activities may or may not be conducted on the “shared” land, the imperious wishes of Ginoogaming must prevail(!)
They are in effect saying that the Mining Act and all the rights granted under it, if they decide and say so, mean nothing!
This is where we have come to in Canada, that such claims can be made and, despite being so legally weak and resting on such suicidal (for the public welfare) policy grounds, persist throughout the system and cause such grievous harm to innocent parties like Mr. Malouf, to our society, our economy, our governments and our country as a whole.
The Ginoogaming claim gives the false impression that their entire alleged “traditional territory”, including the Ferau project lands, was, before Quaternary ever cast its corporate eyes on it, an untouched Eden- a virgin wilderness where only the moccasin-clad feet of Ginoogaming hunters and seekers-of-the-sacred had ever trod. This is ridiculous.
In fact, the entire area has been completely logged over in the past hundred years, this fundamentally central Northern Ontario industry having provided numerous, well-paying jobs to generations of hard-working Ginoogaming band members. A bushplane flight over the area would reveal the ghostly traces of kilometres of old logging loads crossing the area, including the Ferau project lands. Over the same period there has and continues to be a major dam, roads and highways, power lines, pulp and paper mills and commercial tourist operations in the area, constituting part of the basic infrastructure of civilization and all providing more good jobs for, amongst many others, Ginoogaming band members. Ginoogaming itself is presently actively engaging in commercial forestry operations in the Longlac area carried on under the auspices of Crown forestry licenses!
More to the mining point, numerous mining operations have been carried on over the past century both on the Ferau project lands and nearby, all providing numerous good jobs to Ginoogaming band members.
One such mine was the Theresa Gold Mine.
In 1934 a Ginoogaming band member found rock bearing evidence of gold on the bank of the Making Ground River, just south of the reserve. He brought it to Catholic Father Couture, who spoke fluent Ojibwe and who had dedicated a large part of his Church duties to preserving the local Indigenous culture, going so far as to produce a long-playing record of an Ojibwe Christian hymn, Mi Ajigwa Wi Tibikak. The Ginoogaming band members called him Neendamishkang, “the one we love to see arriving.”
Father Couture took the rock to Alphonse Caouette, (the namesake of a similar, nearby mining project that Ginoogaminng is also trying to shut down in this lawsuit), who worked for the CN Railway. Alphonse was so impressed with it that he quit his job at CN and began planning a mine in the vicinity where the rock was found. The result was the opening of the Theresa Gold Mines in 1936. Father Couture joined the gold mine project to assure that the Ojibwe would have an ownership interest in it and secure employment by it, which happened. Alphonse Caouette hired two Ginoogaming members as mine engineers and paid for their studies.
The mine operated for several years, providing employment and a sense of ownership and purpose to Ginoogaming band members.
At Theresa Gold Mines, Natives had their say in the conduct of the mine. Maybe for the first time in modern Canadian mining history. Apart from being employed as miners, truck drivers, engineers, equipment operators and maintenance operators they had their right of vote in the General Assemblies (sic) usually held at Caouette’s house. www.theresagoldmines.ca/en/home
Three key points arise from the above.
Firstly, Father Couture and Alphonse Caouette, probably typical of people at that time and place, showed immense racial decency and racial and cultural respect towards the Ginoogaming local people, thus completely putting the lie to present Ginoogaming exaggerated claims, and the exaggerated claims of the Indian Industry generally, of pervasive “colonialist racism” shown by our non-Indigenous forefathers to Indigenous peoples.
Secondly, for at least the past hundred years the Ginoogaming band leadership and members have been willing and eager participants in various mining ventures, working and living ecumenically side by side with non-Indigenous persons in the modern, heavily mechanized, industrial and commercial development of Ginoogaming’s alleged “traditional territory”.
Thirdly, at no time during this period was there any Ginoogaming assertion- nor could there be- that mining- this benign, ancient and productive civilizational activity which they were always an integral part of-was taking place in any “sacred area” of theirs or that it violated any “sacred rights” or “sacred practices” of theirs. At no time was there any assertion that any of this civilizational activity was “desecrating” anything spiritual or physical or threatening or “irreparably harming” anyone’s “identity, cultural survival and psychosocial wellbeing.” History and common sense completely belie these absurd, frivolous, cynical and totally fabricated claims.
It’s unlikely that any Ginoogaming band members ever said, as they set out in their noisy, gas guzzling trucks and on their snow machines or quads, that they were going to a “sacred area” in their “traditional territory” to practise “sacred activities” in the many decades before 1982, or after. Section 35(1) requires evidence that such practices did in fact regularly occur before 1982 and were still occurring in 1982- that they were existing aboriginal practices then. If this action ever went to trial, in my opinion Section 35(1) would be found to be of no valid legal use, application or benefit to these claimants. The rights claimed were not “existing Aboriginal rights” in 1982 and are thus not entitled to protection under section 35(1).
It’s more likely that Ginoogaming band members went to Father Couture’s Catholic Church Services to sing Mi Ajigwa Wi Tibikak when he came to their reserve for church services. For sure they were going everywhere else in the area- in the alleged “traditional territory”- to work in the logging, pulp and paper, tourist and mining operations that were all around, just like so many equally ambitious, motivated, hard-working non-Indigenous Canadians who shared and continue to share this land with them.
The “psychosocial wellbeing” of the Ginoogaming people had in fact been hugely improved by this past industrial and commercial activity, just as it will be harmed by the unemployment and accompanying idleness, aimlessness and increased social dysfunction that will result from purposeful and productive activities like those planned by Quaternary and Hardrock being shut down.
Some facts about the situation itself, as revealed by the Court documents filed by the parties, further demonstrate the cynicism and factual baselessness of the Ginoogaming legal claim.
Ginoogaming itself had formed its own mining company called Rocky Shore Development Corporation, which staked a large block of claims tying onto the Ferau project lands in the McBean Lake area, which again, completely belies their assertion that to Ginoogaming mining is a “desecrating” activity that violates Ginoogaming alleged sacred values and rights. They wanted to do it themselves! Unfortunately, they let the claims lapse because they lacked the money and technical expertise to perform the assessment work required to be done to keep them in good standing. This is part of the reason why their leaders, in the final analysis, will very likely show themselves content to feed off the efforts of Quaternary, Hardrock and others, rather than engage in these kinds of highly complex and expensive matters themselves.
Quaternary and Hardrock over a many year period have invested $7.3 million on exploration of its Geraldton-Longlac properties, including the Ferau Project lands. Mr. Michael Malouf, the principal of Quaternary and Hardrock, has been living in Geraldton with his family and has been prospecting the Quaternary/Hardrock claims since 1982. He swears in his affidavit filed (and everything below which describes the conduct or thoughts of Mr. Malouf comes from his affidavit as well) that not once since then, until the events leading up the present lawsuit took place, did any Ginoogaming band member ever talk to him about “sacred areas”, “sacred rights” or “sacred practices” in relation to the Ferau project lands or any other lands.
And not once, until the 2020 events surrounding this lawsuit occurred, had he ever heard the Ferau project lands and surrounding areas being referred to by any Ginoogaming band member as Wiisinin Zaahgi’igan, the name for the area including the Ferau project lands that Ginoogaming has only very recently artfully conjured up.
Further, on only two occasions during this long period did he ever encounter an Indigenous person on the lands: one a curious fisherman, and the other a trapper.
Between 2011 and 2015 Mr. Malouf on more than one occasion asked Ginoogaming in writing to identify any “sacred areas” or other such concerns regarding the Ferau project lands. He never received any response. A closer look at the various attempts made by Mr. Malouf to consult with Ginoogaming in this regard shows, with an initial exception, similar neglect and shows generally the incredibly arrogant, rude, negligent, disrespectful and indifferent treatment he received from the Band for all his good faith efforts to engage with them.
In July of 2011 Mr. Malouf had a very “positive and enthusiastic” meeting with the Chief and Council of Ginoogaming about the Ferau project, who were all very supportive of it. They discussed with Mr. Malouf their Rocky Shore Development Corporation mining claims in the same positive vein. They voiced no objections to the work Mr. Malouf outlined that his company was proposing to do, and, as he swore in his affidavit, “nor, when asked, did they voice any concerns respecting the potential for Aboriginal Heritage Sites, sacred sites, burial sites, medicinal plants or sites of archeological significance.”
Then everything changed.
In May of 2012 Mr. Malouf sent to Chief Cecilia Echum a complete summary of all the work that had been done on the Ferau project property from 1932 to 2011, together with maps, and asked her to identify any areas of “cultural” or “heritage” concerns on the maps. He never received a response to his request and received no subsequent communications from Ginoogaming in this regard until three years later, in June of 2015.
In April and May of 2015 Mr. Malouf called and wrote the Ginoogaming Band office saying that he wanted to discuss with the Band his company’s Exploration Permit applications. No one returned his phone calls or replied to his letter.
ENDM arranged a meeting for June 17th, 2015 amongst Mr. Malouf, ENDM and Ginoogaming to discuss any concerns the Band might have with an exploration permit being issue to Quaternary. Neither the Chief nor any Councillor showed up for the meeting. Calvin Taylor, a band member and Ginoogaming’s “Lands and Resources Manager”, did attend the gathering, however. He told Mr. Malouf that Ginoogaming “had been looking for a way to expand their reserve to the south. He said the reserve had the idea, at one time, that they could tie up the property by staking claims but had decided they would have to spend too much time and money on assessment work and abandoned the idea.”
On July 20th, 2015 Mr. Malouf wrote a letter to Chief Echum and Ginoogaming’s “Community Communications Liaison Officer”, Conrad Chapais, requesting a meeting to discuss their concerns about his application for an exploration permit. He received no response to his letter from either party.
On September 17th Mr. Malouf emailed Mr. Chapais attaching full particulars of the work proposed. He asked to meet with Mr. Chapais to discuss any Ginoogaming concerns. He received no reply to his email.
On November 3rd both he and ENDM emailed Chief Echum and Mr. Chapais asking for a meeting. Mr. Malouf telephoned them both the same day and left messages to call. Neither the emails nor the phone calls were responded to.
On November 10th Mr. Malouf called Mr. Chapais again and left a message. He did not return this call either.
As sworn by Mr. Malouf in his affidavit:
“After trying multiple times to get in touch with Mr. Chapais I finally decided to drop-in visit the plaintiff’s Band Office on November 25th, 2015 in the hopes that I might be able to speak with Chief Echum. I was told Chief Echum was unavailable and instead I had a meeting with the plaintiff’s affiant Sheri Taylor and Calvin Taylor. In that conversation I told them that I was having difficulty understanding the delay with our Exploration Permit and asked them if they would share with me any concerns they had with our proposed project. Calvin Taylor said that they did not have to specify the plaintiff’s reasons. They both said that they personally did not want to see any exploration work performed in the McBean Lake Area. Sheri Taylor said that the plaintiff had received nothing from the logging industry and she did not believe they would ever get anything from the mining industry either. Calvin Taylor said he would set up a meeting for the following week however he never followed through with his commitment.” (Italics added)
Imagine! “We don’t have to tell you our reasons!” How very unkind to someone who for years had kindly reached out to them! How arrogant, disrespectful and inconsiderate! In fact, there were no “reasons” worthy of the meaning of the word to tell, otherwise they would have been told.
Finally, in March of 2016 Quaternary was issued a three-year exploration permit. Ginoogaming did not raise any objection to it.
For economic reasons no exploration work was performed under the permit and Quaternary had to apply for a new permit commencing in March of 2019, which it did in mid-2018. In August of 2018 ENDM advised Mr. Malouf that Ginoogaming had not expressed any specific concerns with regard to the permit renewal applications.
The current exploration permit was issued to Quaternary in late May of 2019. Ginoogaming was advised of this but again, raised no concerns about it.
Before going on to the events of 2020 there’s one further indication of Ginoogaming’s insincerity in presently claiming that the Ferau project lands are in any way “sacred” or special to Ginoogaming.
Ontario has a program whereby Aboriginal communities can apply to have areas of special cultural significance to them designated as Sites of Aboriginal Cultural Significance and withdrawn from claim staking and other mining activity. Ontario even offers taxpayer funding for this!
Ginoogaming has never applied to Ontario to have the Ferau project lands designated as a Site of Aboriginal Cultural Significance.
In June of 2020, Quaternary advised ENDM and Ginoogaming in writing that it intended to actually commence the physical exploration work authorized by the permit.
Only then, after all these years of silence–of ignoring Mr. Malouf’s efforts to reach out- after all these years of Quaternary reasonably relying on Ginoogaming never raising any specific concerns– did Ginoogaming finally object.
But they didn’t show the ever-supplicating, mistreated and neglected Mr. Malouf the kindness and courtesy of a face-to-face meeting, something they knew he had been in effect pleading to have for years.
Mr. Malouf first only heard of their objections by way of a phone call from ENDM. As sworn to by Patrick Barnes, the Ministry affiant:
“Following GFN’s response to the mobilization notice, Ministry staff contacted Mr. Malouf on June 11, 2020 and relayed GFN’s position to him. Ministry staff advised Mr. Malouf that GFN was asserting that there are community values in the area and that access to the site may be restricted by the community for that reason.”
“Access to the site may be restricted” means an illegal blockade. Note how seemingly undisturbed and matter of fact the Ministry is at the prospect of one of their lawful mining claim licensees being illegally denied access to it’s claims.
On June 12th ENDM, Ginoogaming and their lawyers, OKT Law of Toronto, had a telephone meeting. Mr. Malouf was not invited to attend it. From Mr. Barnes affidavit:
At the June 12th meeting, GFN representatives reiterated that the Ferau project was on sacred lands and that this had been made clear to Ontario on many occasions, although no such prior communications were identified during the meeting. GFN representatives also stated that no exploration activities could take place in Wiisinin Zahgi’igan. The call did not go into specific detail about the sites of cultural historical significance, and instead centred on what legal actions and dispute resolution processes were available. GFN representatives indicated that Mr. Malouf had refused their request that he not work on the project. OKT Law, GFN’s legal counsel, also made reference to possible direct action by the community.” (Italics added)
Here, taking Mr. Barnes at his word, we seem to have an Ontario lawyer casually mentioning, without any hint of disapproval, illegal action on the part of her client as something that might reasonably be expected. This is not proper. It’s unethical for a lawyer to countenance, even if only by implication, the possible happening of a criminal act on the part of her client.
Rule 3 of the Rules of Professional Conduct for Ontario lawyers states in part that “a lawyer shall not knowingly encourage any illegal conduct on the part of her client or do or omit to do anything that the lawyer ought to know encourages illegal conduct by a client.” The Rule further requires a lawyer who knows that his client intends to act illegally to advise the client that the activity is illegal and should not be done, or if it is started, it should be stopped. If the client doesn’t take the lawyer’s advice and continues with its illegal intentions or activity then the lawyer is to cease acting for the client.
No doubt the lawyers for Ginoogaming have counselled their client in writing not to resort to illegal self-help i.e. the possible “direct action” referred to by Mr. Barnes. And no doubt they have told Ginoogaming in writing that their firm will resign as their lawyers if they do.
It should be emphasized that when Ginoogaming made these threats, what they were actually doing was threatening to break their sacred Treaty 9 promises. Ginoogaming, like all Indigenous treaty signers, don’t just have treaty rights. They also have corresponding treaty obligations.
As stated, treaties are two-way streets.
As Dalhousie University Schulich School of Law Professor Constance MacIntosh recently said:
Treaties are part of the Canadian Constitution, they are binding legal instruments, they are not discretionary. And they set out obligations on each side, which bind both parties. (Italics added.)
(Matt Reeder, Ask an Expert: Indigenous Law Scholar Constance MacIntosh on Modern Misconceptions About Treaty Rights, Dalhousie University News, October 1st, 2020)
The Supreme Court of Canada, in the oft-cited Badger case, (1996 1 SCR 771) said:
A treaty represents an exchange of solemn promises between the Crown and various Indian nations. It is an agreement whose nature is sacred. (Italics added.)
“Restricting access to the site” and “possible direct action by the community”, code words for erecting an illegal blockade, would constitute a serious breach by Ginoogaming of their sacred Treaty 9 promises to “obey and abide by the law”, to “not molest the person or property of any inhabitant” of Crown land, to not “interfere with or trouble any person passing or travelling through” Crown land, and to “assist the officers of His Majesty in bringing to justice and punishment any Indian offending against the stipulations of this treaty, or infringing the law in force” in Ontario.
(For more on this completely overlooked aspect of Indigenous law and relations, again, see my article First Nations Blockade Violates Treaty Promises, under Recent Posts elsewhere on this website.)
Ginoogaming’s “response to the mobilization notice” referred to above was that, as stated, instead of contacting Mr. Malouf directly, they immediately went to war, having their Toronto lawyers send a letter to ENDM complaining that Ginoogaming had not been properly consulted and accommodated and that the proposed exploration work threatened alleged sacred areas and sacred rights. Interestingly, and showing the underlying, naked, economic self-seeking nature of Ginoogaming’s new-found claim of the sacred, the letter referred to Ginoogaming’s ongoing negotiations with Canada and Ontario to expand the boundaries of its reserve; its “Treaty Land Entitlement Claim”, which is expressly referred to in Ginoogaming’s claim and which Calvin Taylor was likely obliquely referring to in his conversation with Mr. Malouf.
The lawyer’s letter said in this regard: “TLE community consultants identified Wiisinin Zaahgi’igan as a place of great value.” “Wiisinin Zaahgi’igan”(referred to hereafter as “WZ”) is, in my opinion, borne out by the affidavit of Mr. Malouf in this regard, Ginoogaming’s recently invented name for the Ferau project lands- as is the name “Ginoogaming itself- until very recently the Band name was Long Lake 77 Reserve– both names invented so as lend a greater air of legitimacy and cultural authenticity to themselves as a separate “nation”, (100% supported by the Canadian taxpayer), and to their legal claims.
As stated, in all his 38 years of prospecting, working, living and socializing in the Geraldton area- of always trying to be a kind and considerate neighbour to Ginoogaming band members- this letter provided the first occasion in which Mr. Malouf had ever seen or heard of the term Wiisinin Zaahqiigan!
This statement in the lawyer’s letter about WZ being a place of great value, reflecting as it did what Calvin Taylor had said, gave rise to the reasonable belief on the part of Mr. Malouf that Ginoogaming’s ultimate aim is to, one way or another, for one purpose or another, have the valuable Ferau project lands for themselves!
Indeed, it actually admits this in paragraph 33 of their Statement of Claim:
“Ginoogaming claims that it received less Indian Reserve Land than was promised in Treaty 9. It is pursuing a “Treaty Land Entitlement” (“TLE”) claim against Ontario and the government of Canada. Ginoogaming is considering Wiisinin Zaahgi’igan as land that would fulfill its TLE claim.” (italics added)
And it further states this in their injunction Notice of Motion, where it states:
“Ginoogaming intends to select parts of Wiisinin Zaahgi’igan as land to be added to its reserve under this TLE claim.”
Ever the willing-to-accommodate, nice guy, Mr. Malouf agreed to postpone the commencement of his exploration work until August. On August 14th the increasingly frustrated Mr. Malouf was advised by ENDM that they had made no progress with Ginoogaming in resolving their issues. Ginoogaming was still unable or unwilling to point out to ENDM any specific, particular, cultural “sacred” sites. He advised ENDM in turn that Quaternary was no longer willing to further defer doing its exploration work.
Two days later Mr. Malouf received a letter from ENDM advising him that “the plaintiff had stated that if we pursue any activities under our permit they will consider such activities as an act of “confrontation and provocation.” ENDM itself cautioned Mr. Malouf “that the plaintiff’s members could take “direct action” to prevent Quaternary from working.
Again, a casual and matter-of fact-assertion from an ENDM official sending the clear message that there might be a Ginoogaming illegal, sacred treaty-promise-breaking blockade and if that happened, in my opinion, the clearly implicit message that ENDM would, as it did in the Platinex, Solid Gold Resources and Frontenac Ventures cases discussed in my book There Is No Difference, (thereisnodifference.ca), passively sit back and do nothing to prevent it or to assist their lawful mining claim licensee and, in general, would do nothing to defend the integrity of the Province of Ontario’s grant of this lawful mining exploration permit to Quaternary or to demand that Ginoogaming live up to its treaty promises not to break the law.
On August 24th Mr. Malouf had a conference call with ENDM’s lawyers and OKY Law. He made the following summary of what was discussed:
- Kate Kempton proposed a “tolling agreement” in which any party could withdraw with one week’s notice. We concluded that a tolling agreement would not work for us.
- Kate Kempton clarified that the plaintiff is not interested in an Exploration Agreement.
- Kate Kempton stated that the plaintiff is opposed to any exploration in the McBean Lake Area.
- Kate Kempton claimed Ontario needs to cancel our permit and buy us out.
- Robert Brent (the ENDM lawyer) proposed that I stay off the land until the issue is dealt with by judicial review.
- Kate Kempton said she thought judicial review might be a good idea but quickly changed her mind when it was pointed out that she had missed the deadline to initiate a Judicial Review in June 2019.
- Robert Brent subsequently expressed his surprise to hear the plaintiff’s position. (italics added)
Here Ginoogaming, in total violation of the promises they gave in Treaty 9 regarding lands “taken up” by the Crown, asserts a blanket veto against any mining activity whatsoever taking place on surrendered and “taken up” Crown/Provincial/public lands.
Here Ginoogaming casually and cruelly asserts that Quaternary’s mining claims and permits- and the huge financial and personal life investments underlying them- mean nothing- that Ontario should simply cancel Mr. Malouf’s 38 years of work and dreaming and trying to build and create and add to civilization, and just send him and his company packing with a cheque.
Here Ontario proposes that Quaternary not exercise rights which Ontario itself lawful granted until some notional Court months or years later conducts a “judicial review”… of what? Ontario here acts as unprincipled as Ginoogaming! Such a proposal, if accepted, would play right into Ginoogaming’s hands and give them just what they want- endless crushing, soul-destroying, ruinously expensive to the point of insolvency, investment killing delay!- a situation where they end up calling the shots and getting whatever it is they want from either Ontario or Quaternary, should the latter choose and be able to stay in the picture. And should the latter not so choose or be unable to stay, then…nothing.
Nothing for anybody.
Here is where Haida Nation and subsequent years of Crown acquiescence, passivity and enabling behaviour has led us to: a situation where a tiny, paper tiger Indian band, living entirely on government support, with a childish, puffed-up sense of entitlement and self-importance, can assert, not totally unreasonably, that at the stroke of a Band resolution they can cancel a man’s entire life’s work and dreams and outlaw an entire industry from their off-reserve, alleged “traditional lands”, which latter term they say means anything they want it to mean.
Mr. Malouf, unable to see his life’s work taken away, stood his ground and now finds both he and his companies sued for an injunction and $80,000,000 in damages. Sued for what? Why? He and his company did nothing wrong but to try endlessly to play by the rules!
Mr. Malouf was even sued personally but then, when one reads the Statement of Claim, one reads no allegations that he personally did anything wrong to justify him being sued. In the Statement of Claim he is described as “the Qualified Supervisor of the Ferau Project”, a clear agency position on behalf of the principal Quaternary. All lawyers know that except in exceptional circumstances, definitely not present here, (and in any event not pleaded), an agent is never personally liable for acts done in the course of his duties for his principal. It’s the principal who is solely liable. Dragging him personally into the court case is an example of overly aggressive, hardball, bullying, distinctly and needlessly unkind litigation tactics on the part of Ginoogaming and its lawyers.
Mr. Malouf experienced further questionable treatment at the hands of Ginoogaming and its lawyers. He’s a 74 year-old Geraldton resident who has to walk with a walker. His health is frail. His wife is a cancer survivor. In October of 2020 he emailed OKT Law and asked them to agree to move the trial venue of the Court action from Toronto to Thunder Bay, where it would be more convenient for the parties and their witnesses. The only connection this case has with Toronto is that it’s where Ginoogaming’s lawyers work and live and perhaps Ontario’s lawyers. As Mr. Malouf said in his email: “In the interests of justice I ask you to recognise that I am a self-represented litigant (by necessity) with a disability.”
OKT Law replied in part as follows:
“We do not in fact want any judges quite familiar with the parties deciding this case, due to reasonable apprehension of bias. TBay has had horrible problems with racism directed to Indigenous peoples and this is well documented. If anything, it is a more loaded and charged environment than Toronto for this kind of case. Do note that we have clients from sea to sea in Canada and argue in courthouses across Canada. We have argued in TBay on a number of occasions, so we are not insular Toronto lawyers. Again, we have carefully considered this and in this case find little merit and much cost would be incurred to a transfer to TBay.” (italics added)
In my opinion OKT Law’s clear suggestion that Thunder Bay judges would be biased against their Indigenous client is an unethical statement for any lawyer to make, especially to a self-represented litigant (see immediately below). Rule 5.6.1 of the Rules of Professional Conduct obligates lawyers to “take care not to weaken or destroy public confidence in legal institutions or authorities by irresponsible allegations.” Suggesting that Thunder Bay judges would be affected by racism in their deliberations involving an Indigenous litigant is highly improper and irresponsible, not to mention completely untrue.
In addition, OKT Law knew that they were dealing with a person who was not represented by a lawyer. Rule 7.2-9 of the Rules of Professional Conduct states that when a lawyer deals on a client’s behalf with an unrepresented person, the lawyer shall “take care to see that the unrepresented person understands that the lawyer is acting exclusively in the interests of the client and accordingly their comments may be partisan.”
There’s little indication in OKT Law’s omniscient pronouncement on venue law to the effect that there was “little merit” in Mr. Malouf’s request for a change of trial venue that the lawyer’s comments “may be partisan,” as of course it was. Mr. Malouf should have been reminded of that by OKT Law. In fact there is a great deal of merit in Mr. Malouf’s request for a change of venue. Change-of-venue law favours Mr. Malouf’s position!
Mr. Malouf and his companies stand alone on wobbly legal legs, with only right and morality on their side, and the entire legal, political and bureaucratic zeitgeists against them.
While playing the victim here Ginoogaming is actually the powerful bully, exercising its powers to the fullest with the aid of its influential, equally powerful, deep-pocketed and prestigious Toronto lawyers. The self-represented Mr. Malouf and his companies are decidedly the innocent victims being overwhelmed and victimized to the fullest.
The injustice befalling Quaternary, Hardrock and Mr. Malouf, (and I daresay Mr. Kerr) here is a microcosm of the harmful state of affairs in Canada’s resource sector today, both in terms of the ongoing damage to the Canadian economy occurring because of the state of the law, and in terms of the rule of law itself being under siege. The fundamental cause of this is, in my opinion, the Haida Nation decision, which effectively unilaterally amended the Canadian constitutional order by making Indigenous groups a de facto third fount of constitutional sovereignty, and our federal and provincial governments’ passive and enabling response to it. (See my reasoning for this in my book, There Is No Difference, excerpted on this website.)
If this harmful state of affairs had always existed in Canada there would not be the civilizational Canada that we take for granted today. There would be no Sudbury, where I live. There would only be, from sea to sea, untouched, unviolated “sacred areas” where Canada’s First Peoples perpetually engage in bow and arrow and bone knife “harvesting” and “sacred practises” in furtherance of their “psychosocial wellbeing.” Ginoogaming band elites would be trekking or paddling down to Toronto to meet with their office-tower lawyers instead of driving on Highway 11 to Thunder Bay and then flying Air Canada or Porter. To state but this one example of the logical end point of all this is to reveal the surreal, fantasy nature of Ginoogaming’s legal claim, and the surreal, economy-wrecking and illiberal nature of the entire present, “nation to nation”, benignly racist, quasi-apartheid, “separate but equal” nature of the Indigenous situation in Canada today.
If Nelson Mandla read all the documents in the Court file for this case he would weep.
Interestingly, in addition to all the Canadian law-based claims made in Ginoogaming’s claim, they make a separate, express legal claim for relief under the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), which the spectacularly foolish Trudeau Liberal government says that it intends to adopt in some fashion as part of the laws of Canada. The historically and legally ignorant Prime Minister Trudeau insists that this won’t add any further “consult and accommodate” burdens onto natural resource project proponents, such as Quaternary. But every new law of a legislature has to mean something new and different, or why else was it passed?
The proof is in the pudding. Ginoogaming’s lawyers wouldn’t have added UNDRIP as the basis of a separate, express legal claim unless it meant something more than- something added to– their “consult and accommodate” claim.
UNDRIP will further erode Crown sovereignty, will further impair our duly elected governments’ abilities to make laws to regulate the marketplace and manage the economy, and will further damage our resource-based economy, for example, just as it is now threatening Quaternary and Hardrock and the existence of all the area jobs that may be lost if Ginoogaming is allowed to prevail in this case in any way.
The legal uncertainty shot through UNDRIP, added to the already chaotic legal uncertainty arising out of the “consult and accommodate” obligation, is another legal and tactical windfall for Indigenous groups and their lawyers.
Court cases are won with evidence. Allegations in a Statement of Claim are not evidence. Ginoogaming has to prove its case with evidence. Much of the evidence supporting the allegations of sacred areas, sacred rights and sacred practices- all alleged “Aboriginal rights”- will come in the form of expert reports. A very brief examination of the three draft expert reports prepared, which presumably when finalized will provide a large part of the evidence offered in support of the existence of these alleged sacred things, shows again what a thin gruel of facts Ginoogaming has to offer up in support of its surreal fantasies of the “sacred”.
Rule 4 of the Ontario Rules of Civil Procedure mandates that expert reports be “fair, objective and non-partisan.” An expert report will be deemed biased if the expert uses his client’s analyses and conclusions. An expert cannot usurp the function of the Judge by coming to legal conclusions. An expert cannot have a conflict of interest with his client. She can’t base her conclusions on hearsay. She can’t be on a general retainer with her client. If any of these factors are present in relation to an expert report then the Court will likely refuse to enter it into evidence.
The Ginoogaming expert reports violate most of these rules.
There are three reports.
The first is “EXPERT REPORT ON THE CULTURAL, SOCIAL, AND PSYCHOSOCIAL IMPORTANCE OF WIISINEWII ZAAGIIGAN AND ONGOING IMPACTS”, prepared by Firelight Research Inc. In this report WZ is spelled differently than it is in Ginoogaming’s lawyer-prepared claim, giving credence to my assertion that the term WZ is only a recently invented one the spelling of which all these various Ginoogaming supporters are still unsure of. The report, commissioned to determine whether WZ is a “cultural keystone place”, relies on hearsay facts, being the facts related in the other two expert reports. The most damning of this reports’ many flaws is that it makes the legal conclusions, that only the trial judge can and should make, that WZ is a “cultural keystone place” and that “WZ supports…the practice of Aboriginal and Treaty rights.” These will be major issues in the trial of this action and so these improper opinions constitute a classic usurpation of the function of the trial Judge.
The second is “Ginoogaming First Nation Traditional Knowledge & Values in Wiisnewii Zahgaagin: Ferau Property Area Focus”, prepared by Four Rivers Inc. Again, WZ is spelled differently than the way the Ginoogaming lawyers spelled it and the way Firelight spelled it, (making three different spellings), again casting doubt on WZ’s alleged ancient and authentic provenance. Four Rivers is said to be “an environmental services group within Matawa First Nations Management to provide environmental support and technical services to the Matawa member First Nation communities…” Ginoogaming is a member of the Matawa Tribal organization. The expert and the client here are almost one and the same! At the very least Four Rivers is on regular retainer to Ginoogaming. Thus there is total bias and conflict of interest. Some of the main workers on this report are potential fact witnesses, in particular Calvin Taylor, who was part of the “interview team” and helped to identify interviewees. This alone disqualifies the report. Right on page one it draws the legal conclusion, that can only be made by the trial Judge, that “WZ are sacred lands to the people of GFN”. It makes the historical finding, totally beyond the expertise, such as it is, of the authors of this report, that “the legacy of colonialism and resource development within their homelands without consent (or any involvement) resulted in a significant loss of culture, identity and trust in external entities.” The report is filled with bias. One of the “experts” is a member of the Ginoogaming Indian band, creating a classic conflict of interest.
The third report is, in my opinion, a complete evidentiary non-starter. It’s a report entitled Archaeological Assessment of the Ferau Project within the Ginoogaming First Nation Immediate Traditional Territory in the District of Thunder Bay, prepared by White Spruce Archaeology Inc. It openly admits that it relied on the other two reports for a substantial amount of the information it related and relied upon. This is improper. These White Spruce “experts” say that despite admitting that because of Covid concerns they did not conduct a physical site visit of the area they were asked to give and they did purport to give an expert archaeological opinion on, whether each mining claim “has an indicator or feature of archaeological potential (primary water source and GFN land values”, (the latter being hearsay), and that therefore, according to White Spruce, “Stage 2 assessment is required. Consultation with GFN is required.” The latter italicized sentences are again, Judge-usurping legal conclusions, which only a trial Judge could and should make, so this report too, for these reasons and more, in my opinion, would likely not be admitted into evidence.
In my opinion Ginoogaming, for the reasons only partially stated above, has an extremely weak legal case here.
Ontario should strongly defend this case, but given its politicians’ and senior bureaucrats’ (all the regular bureaucrats have to keep their mouths shut and follow orders or else lose their jobs) demoralizing and destructive past policies and practices of appeasing Indigenous lawbreaking- of insisting on endless “negotiation with a view to reconciliation”, and taking, at best, a non-committal, bland, politically safe (in their minds), neutral stance in these kinds of contests between Indigenous groups and mining companies, then Quaternary has great reason to worry.
Ontario is the key, and if, like in previous similar cases, (as stated, see the Platinex, Solid Gold Resources and the Frontenac Ventures cases described in my book, There Is No Difference), despite having really good facts and equities on their side, like here, despite having substantial law on their side, as here, and despite exemplary conduct on the part of the mining company, as here, they fail to stand behind and defend their grant of the Quaternary exploration permit and strongly defend this case, and if they act weakly, neutrally and passively as before, then Quaternary and Hardrock will get left to twist, twist slowly in the wind, and their interests will be sacrificed, as happened to Platinex, Solid Gold Resources and Frontenac Ventures.
In these “consult and accommodate” situations, the Indigenous group has no downside for being unreasonable. That’s why they could so easily and rudely ignore Mr. Malouf’s messages and entreaties to meet and engage. That why, sadly, they felt and continue to feel quite free to treat him with such unkindness. They have no skin in the game and thus no reason to come to any bargaining table, to compromise, or to negotiate in good faith generally. They can hold out forever. Their transfer payments and other benefits come in from Ottawa and Queens Park regardless. No matter what happens their lives go on as usual. This is why, despite their claims so often being legally weak, as here, their bargaining position is disproportionately strong.
The mining company on the other hand has bank loans, investors, mouths to feed, deadlines and commitments. It’s a lonely, alone, sitting duck. Delay too often causes their backers to back off and their investment window to close. Mr. Malouf is 74 years old and in not the greatest health. If this injunction is granted he could die before seeing his life’s work and dreams bear any fruit. It’s an unfair contest played out on a tilted playing field. Small companies like Mr. Malouf’s usually have to either capitulate and get the best danegeld (extortion) deal they can get, or else abandon their project and perhaps try to get Ontario to compensate them, which has happened in the past. (See the Platinex and God’s Lake Resources examples discussed in There Is No Difference.)
Quaternary can also expect, even if it has a strong case and wins, or even if it just appears that Quaternary is winning, that if Ginoogaming comes to consider that things aren’t going so well for them, or, if they just feel like it, at any time and for any reason, then they will, as has already been told to Quaternary, break their sacred treaty promises in this regard and by simply taking the law into their own hands, illegally blockade the Ferau project lands, thereby gaining illegally their goal of the shutting down the Ferau project until their danegeld demands are met. This reality, of which, as stated, Ginoogaming’s lawyers, without apparent fear of ethical censure, offhandly reminded Ontario, increases their disproportionate bargaining strength even more!
There are numerous very recent precedents for this. For example, Caledonia and the Mohawk rail blockade: precedents in existence only because our governments and police generally refuse to enforce Court orders and other laws of the land against Indigenous lawbreakers who dress up their lawbreaking activity in the guise of a claim for some sort of land claim or claim of “Aboriginal and/or treaty rights.” (See the rationale for this pernicious government and police dereliction of duty in my articles in this regard: The Grave Danger of Race-Based Law Enforcement in Canada, at https://fcpp.org/2020/11/29/the-grave-danger-of-race-based-law-enforcement-in-canada/ and The Ontario Provincial Police’s Framework For Police Preparedness For Aboriginal Critical Incidents- A Planned and Deliberate Policy for the Enabling and Appeasment of Aboriginal Lawbreaking, at www.thereisnodifference.ca.)
The promise given in Treaty 9 by the Ginoogaming forefathers who signed the Treaty on behalf of all future generations of Ginoogaming band members to, “in all respects, obey and abide by the law”, will be shown to mean nothing to Ginoogaming, as they have already indicated. As usual, they will claim sacred Treaty 9 rights but deny or explain way their sacred Treaty 9 obligations.
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.”
The Ginoogaming band members are rightfully concerned with things “sacred.” I think all human beings are, and equally so. In my opinion we should apply considerations of the sacred at least as much to our relations with one another as human beings in the manner of Father Couture– as in the manner of being kind to one another– as to our relationship to our “land” and to such cold, selfish, parochial manifestations of that as is being manifested by Ginoogaming.
The Lakota Sioux warrior and Spirit Leader Black Elk reflected this sacred connection which all humans on earth have with one another in his great vision as follows:
Then I was standing on the highest mountain of them all and round about beneath me was the whole hoop of the world. And while I stood there I saw more than I can tell and I understood more than I saw; for I was seeing in a sacred manner the shapes of all things in the spirit, and the shape of all shapes as they must live together like one being. And I saw that the sacred hoop of my people was one of many hoops that made one circle, wide as daylight and as starlight, and in the center grew one mighty flowering tree to shelter all the children of one mother and one father. And I saw that it was holy. (Black Elk Speaks, by John G. Neihardt, University of Nebraska Press, 2014- Italics added.)
Oh, rather that the generous, kind, colour-blind and humanitarian spirit of Black Elk prevailed here, for the sake of all of us!
(I’ve used the words “kind”, “unkind”, “kindness” and “unkindness” quite a lot in this essay, because it has struck me that these words go to the human root of so many of our problems, including this situation, and are fundamental to what Black Elk was saying. I take inspiration from the brilliant historian and travel writer Jan Morris, who, summarizing up her view of life in her diary just before she recently died in her nineties wrote:
“Tragedy to farce, incompetence to despotism, uncertainty to arrogance, all that is most miserable about the human condition seems to have entangled all our lives….Nature itself seems to have had enough of us, and has told us so.
Worst of all, though, has been the way humanity has turned on itself. Across the globe in these unhappy weeks there have been reports of corruptions and cruelties, killings, betrayals, reputations ruined and sneaky disclosures gleefully trumpeted. Is nobody decent any more? Can I not trust my neighbour? Where’s God gone, if there is one? We don’t know, we don’t know, and there’s the trouble. We have no certainties any more, no heroes to trust, no Way (in mystic capital letters) and no Destination.
But perhaps you will forgive me if I propagate an old thesis of my own once more. It is this: that the simplest and easiest of virtues, Kindness, can offer us not only a Way through the imbroglio, but a Destination too.”
(From Jan Morris, Thinking Again- A Diary, Liveright Publishing Corporation, 2020)
In the thirteenth century the Mongols, by terrible and cruel force of arms, created an empire that spanned from the Black Sea to China. But even such a violent and avaricious people as they were understood that to maintain that empire, and for it to flourish, there had to exist the rule of law. As historian Peter Frankopan wrote in The Silk Road- A New History of the World (Alfred A. Knopf, 2016):
Fundamental to European (trade) expansion, was the stability that the Mongols provided across the whole of Asia. Despite the tensions and rivalries between the different branches of the tribal leadership, the rule of law was fiercely protected when it came to commercial matters. The road system in China, for example, was the envy of visitors who marvelled at the administrative measures in place to provide security for travelling merchants. “China is the safest country and best country for the traveller,” wrote the fourteenth -century explorer Ibn Battuta; this was a place where a reporting system that apparently accounted for each outsider on a daily basis meant that “a man travels for nine months alone with great wealth and has nothing to fear”. (italics added)
No “consult and accommodate” claims tolerated there. No attempting to bar a caravan from passing because it was travelling though someone’s “sacred area.” No illegal barricades or blockades. No injunction suits.
The situation our elites have created here has reached a terrible state when we have to learn lessons about the absolute necessity of marketplace certainty and the rule of law from Genghis Khan!
And this, from Yuval Noah Harari’s best seller, Sapiens, on the crucial importance, for the economy and the public welfare generally, of strong, clearly asserted Crown sovereignty:
…But in its extreme form, belief in the free market is as naïve as belief in Santa Claus. There is simply no such thing as a market free of all political bias. The most important economic resource is trust in the future, and this resource is constantly threatened by thieves and charlatans. Markets by themselves offer no protection against fraud, theft and violence. It is the job of political systems to ensure trust by legislating sanctions against cheats and to establish and support police forces, courts and jails which will enforce the law. When kings fail to do their jobs and regulate the markets properly it leads to loss of trust, dwindling credit and economic depression. (italics added)
Our “kings” are failing to do their jobs.
Here, our “king” is the Crown in right of Ontario- the Province of Ontario- represented by its politicians and senior bureaucrats. In other cases, it’s the Crown in right of another Province, or the Crown in right of Canada, similarly represented.
They must all re-start doing their jobs!
Ontario must strongly and aggressively defend this very weak legal action. The “Honour of the Crown” should no longer mean the Crown throwing in the legal towel at the first opportunity, or fighting Indigenous cases with one hand tied behind their lawyers’ backs, as has been the general case up to now.
The Crown should indicate to Ginoogaming that it won’t be settling out of Court, short of a settlement where Ginoogaming drops the case against all parties. It should indicate to Ginoogaming and its lawyers that for a change Ontario will take this case to trial and let a Judge decide. It should indicate to Ginoogaming that, contrary to all past practise, the Ontario taxpayer this time will not under any circumstances be paying their legal costs unless ordered to do so by the Court. This will really give Ginoogaming’s lawyers a wakeup call. Up until now acting for Indigenous groups in these types of legal matters has been a virtual no-lose gravy train for lawyers. Here, by the time the injunction motion is argued in early June, I estimate, based on reviewing the file, that their lawyers will have at least $100,000 worth of legal work invested into the case. They have alleged in the motion that Ginoogaming is insolvent. So they have to be expecting that, win or lose, based on this past practice, which itself is based on the much abused “Honour of the Crown” theory, that one way or another, Ontario and Ontario’s taxpayers will be picking up their huge legal services tab.
(This a great flaw in our law as it applies to Indigenous law cases. In our civil law system, other than for Indigenous law cases, we have a “loser pays” rule. If a plaintiff sues a defendant and then loses the case, the plaintiff is usually ordered to pay a large chunk of the defendant’s legal fees, and vice versa. This fear of having to pay if you lose operates as a check against the filing of frivolous lawsuits, or a check against maintaining frivolous defences. It reduces the load of cases burdening the court system. It discourages the filing of “strategic” lawsuits i.e.lawsuits brought for some ulterior motive or collateral purpose, such as here, the collateral purpose of expanding the boundaries of the Ginoogaming reserve. The courts, on the basis of a very flawed and overworked interpretation of the “honour of the Crown” theory, having generally suspended the “loser pays” rule in relation to Indigenous lawsuits, have given Indigenous bands and other Indigenous groups a form of diplomatic immunity in this regard, resulting in them being able to drag people like Mr. Malouf into expensive, complicated court proceedings without having to compensate him or anyone else if they lose. This gives them a tremendously unfair strategic advantage. The absence of the fear of an adverse costs ruling gives them little reason to settle or otherwise be reasonable.)
Ontario’s lawyers should remind Ginoogaming’s lawyers of their professional duty to warn their client against conducting illegal actions, and to advise Ginoogaming that if they do, they (the lawyers) will cease acting for them.
Ontario must repeal the Crown sovereignty-emasculating 2015 Mining Act amendments and, in the face of any illegal Indigenous blockade apply the law without regard to race or the alleged reason for it. In this regard the Ontario Provincial Police must repeal their lawlessness-encouraging Framework For Police Preparedness (above) and apply the rule of law without regard to race as people reasonably expect them to do.
Ontario must expressly declare- again- (this is already their position)- that no lands subject to mining claims or leases will be sacrificed to any Indian band under any Treaty Land Entitlement deliberations or negotiations.
This Ginoogaming situation again highlights the questions: Are our governments solely and fully in charge of the marketplace or not? Are our governments totally sovereign or not? Are our governments willing to fight for their sovereignty?
Over the last 15 years the answer to these questions, in relation to all matters Indigenous, is that they are not.
The tragic and unjust harm being caused to Quaternary and Hardrock- to Mr. Malouf- and to the local, Provincial and Canadian economy, and to Canadian society generally because of this bleak truth, cries out for redress and remedy! “Reconciliation” between Indigenous and non-Indigenous Canadians is being frustrated and hindered by the benignly racist, backward-looking status quo, and the negative emotions being naturally caused by it.
Ontario’s response to the Ginoogaming legal claim is a good opportunity to start to turn this dangerous, socially, legally and fiscally insane situation around, and, for the sake of all of us, including the vast majority of powerless Indigenous Canadians who are being harmed by this situation just as much as non-Indigenous Canadians, start to answer those questions in the affirmative.
April 3rd, 2021
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.)
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
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.
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.
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