) ) WABAUSKANG FIRST NATION Applicant – v. –, 2013 ONSC 5006

CITATION : Wabauskang First Nation v. Minister of Northern Development and Mines, 2013 ONSC 5006 DIVISIONAL COURT FILE NO.: 585/12 DATE: 20130726 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) WABAUSKANG FIRST NATION Applicant – and – THE MINISTER OF NORTHERN DEVELOPMENT AND MINES, THE DIRECTOR OF MINE REHABILITATION FOR THE MINISTRY OF NORTHERN DEVELOPMENT AND MINES AND RUBICON MINERALS CORPORATION Respondents )) )) )) )) )))))))) Maggie E.

Wente , Agent for First Peoples’ Law – Wabauskang First Nation Christine Perruzza , for the Respondents, The Minister of Northern Development and Mines and the Director of Mine Rehabilitation for the Ministry of Northern Development and Mines Geoff R. Hall , for the Respondent, Rubicon Minerals Corporation ) ) ) HEARD at Toronto: July 26, 2013 LEDERER J. (orally) [ 1 ] Rubicon is developing and wants to operate a mine. It has obtained the necessary approvals from the Province of Ontario, including for its closure plan.

No mine is permitted to commence operations without an approved closure plan being in place. [ 2 ] The mine is located on privately held land, part of which is within the traditional territory of the Wabauskang First Nation which is in turn within the territory of Treaty 3, one of the numbered treaties between the Crown and First Nations that were entered into after confederation. [ 3 ] The First Nation believes that the treaty reflects an agreement between it and the Crown as represented by the federal government and that the Province was without authority to approve the closure plan without the participation of the federal government.

It has brought a judicial review seeking to quash the approval of the closure plan. [ 4 ] The same or a similar issue was raised in Keewatin v. Minister of Natural Resources. It also concerns land within the territory governed by Treaty 3. Following a 70 day trial, this Court limited the authority of the province (see: 2011 ONSC 4801 ). This decision was reversed by the Court of Appeal (see: 2013 ONCA 158 ). It is now the subject of an application for leave to appeal to the Supreme Court of Canada.

The application is complete and a decision is anticipated sometime during the fall of 2013. [ 5 ] The Wabauskang First Nation was an intervenor in the Keewatin case at the Court of Appeal. It is acknowledged that the case is important and could be determinative of a key issue in the judicial review. [ 6 ] The relationship between the two cases has been acknowledged. On March 4, 2013, Molloy J. signed a consent order extending the time by which the Wabauskang First Nation was required to perfect its judicial review to 90 days after the issuance by the Court of Appeal of its reasons in the Keewatin appeal.

That day was June 17, 2013. It has passed. The judicial review has not been perfected. The Wabauskang First Nation seeks a further extension.

[ 7 ] In its submissions it requested an extension to the earlier of the release of the decision of the Supreme Court of Canada of its decision on the application for leave to appeal or the completion of a mediation presently scheduled for two days commencing November 25, 2013. In this way it hopes to better understand the position it is in. The mediation may resolve all issues. The leave application may resolve at least one. [ 8 ] Rubicon submits that this cannot go on. The process has been engaged, it cannot be left in abeyance.

Its concern is that this is just the second of what could be a series of delays that, based on the possibility of leave being granted, an appeal being heard by the Supreme Court of Canada and a decision being rendered, can be anticipated to take to the fall of 2014 and perhaps beyond. [ 9 ] Counsel for Rubicon submitted that it would be best if the judicial review was perfected as soon as possible. In this way the mediator would be in the best position to understand the issue of the authority of the province and work with that understanding in the mediation.

Wabauskang First Nation responds by pointing out that given the decision of the Court of Appeal, the issue of provincial authority would have to be dealt with based on its decision. There would be no basis on which to proceed with the issue of provincial authority in the judicial review. In the view of counsel for the First Nation this position would be finalized if leave is refused but reopened if it was granted. [ 10 ] The most significant difference between the parties is what will happen if the mediation fails and leave is granted. Rubicon is concerned its fears would be realized and another delay sought.

The First Nation is unprepared to say that this will not happen. [ 11 ] There are other issues to be considered. If leave is granted and the judicial review proceeds it is possible that either the Wabauskang First Nation will lose its right to effectively argue that the province was without authority or it may be that the decision of the judicial review comes to conflict with the ultimate decision of the Supreme Court of Canada. As well, it is important that the processes of the Court be seen to function reasonably. Allowing matters to sit for years, waiting to proceed, is not a desirable end.

All of these considerations should be taken into account. [ 12 ] In the circumstances, I order that perfection of the judicial review be extended to the earlier of 45 days after the release of the decision on the application for leave or 45 days after the completion of the mediation. [ 13 ] If it is the mediation, it is possible that the matter will be resolved. If it is not, hopefully, the parties will have a better understanding of their positions.

If it is the leave to appeal that is determined first, at least it will be known whether the question of the authority of the province has been determined or will go on. [ 14 ] Finally, I am not prepared to foreclose a further motion for a further delay. To me this would be asking the Court to confront the unknown circumstances of tomorrow, today. Having said this, there is a point where the Wabauskang First Nation has to be prepared to move forward or give up. The Courts are not here to await the convenience of the parties.

I point out that the judicial review could be perfected and if any appeal to the Supreme Court of Canada is near, the hearing could be stayed.

At least Rubicon would know what it faces and the Wabauskang First Nation would have been required to act on its application. [ 15 ] I wish to be clear, like that of Molloy J., this order is to be without prejudice to any arguments any party may wish to make on the merits of the application and does not preclude any party from asserting any arguments they may wish to make on the ultimate hearing of the application including (without limitation) any argument by the respondents regarding an alleged delay in the bringing of the application. [ 16 ] With respect to costs, I have been given a Bill of Costs on behalf of the Wabauskang First Nation.

It seeks substantial indemnity costs, I am not prepared to award anything other than partial indemnity costs. Mr. Hall makes the point that, in some respects the results here are mixed. I also take that in account. On this basis, although the costs sought are $15,188.65, I am going to reduce that and award costs in the amount of $8,000 plus disbursement of $306.90 plus HST. LEDERER J. Date of Reasons for Judgment: July 26, 2013 Date of Release: July 31, 2013 CITATION : Wabauskang First Nation v. Minister of Northern Development and Mines, 2013 ONSC 5006

DIVISIONAL COURT FILE NO.: 585/12 DATE: 20130726 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT LEDERER J. BETWEEN: WABAUSKANG FIRST NATION Applicant – and – THE MINISTER OF NORTHERN DEVELOPMENT AND MINES, THE DIRECTOR OF MINE REHABILITATION FOR THE MINISTRY OF NORTHERN DEVELOPMENT AND MINES AND RUBICON MINERALS CORPORATION Respondents ORAL REASONS FOR JUDGMENT LEDERER J. Date of Reasons for Judgment: July 26, 2013 Date of Release: July 31, 2013