Rubicon cheers Ontario appeal court decision

Rubicon Minerals (RMX-T) is applauding the Ontario Court of Appeal’s move to reverse the 2011 decision in the Keewatin case that said the provincial government could not approve resource development in the Treaty 3 region of northwestern Ontario if it affected treaty harvesting rights.

While Rubicon was not part of the Keewatin case that Grassy Narrows — one of the 28 First Nations comprising the Grand Council of Treaty 3 — took to court after waging a decade-long battle, where it claimed the provincial government was violating its harvesting rights by allowing logging on its traditional lands protected by the treaty signed in 1873 — the overturned ruling could now impact how a potential lawsuit by the Wabauskang First Nation against Rubicon plays out.

The verdict, delivered on March 18, says Ontario could take up treaty lands for mining and other related activities without the consent of the federal government, something Wabauskang along with many other First Nations were hoping would not be the case.

Wabauskang, the roughly 300-member community located 100 km south of Red Lake, launched a petition against Rubicon’s mining permits last December.  

The group, led by Chief Leslie Cameron, argues the province and Canada and not the companies should consult with First Nations before issuing mining permits, arguing Rubicon failed to adequately consult it before the province approved its mine closure plan.

“The province seems to listen more to the industry than to our concerns,” Cameron told Northern Ontario Business in December.

Rubicon says it believes the pending lawsuit is “without merit” claiming it regularly met with Wabauskang and the other two aboriginal communities near its high-grade gold project.  

Allan Candelario, Rubicon’s director of investor relations, says Rubicon held 28 meetings since January 2009 with the Wabauskang, Lac Seul and Metis communities. In 2011 Wabauskang even hired an environmental consultant — paid for by Rubicon— to review the draft of the production closure plan, he adds.

“They [Wabauskang] made several recommendations and mitigation measures that they believed needed to be included to protect the rights of the Wabauskang people, and we incorporated all those recommendations into our mine closure plan,” Candelario says.

Some of those changes included retaining an environmental monitor, funding a project committee to assist with ongoing talks and funding independent reviews of future permit applications, the company outlined in an earlier release.    

Rubicon received approval for its closure plan in December 2011, Candelario says, adding Wabauskang had 15 days to appeal the decision but chose not to.

But fast forward to Dec. 21, 2012, the band named the company in a petition for judicial review questioning Ontario’s authority to approve the production closure plan.

Candelario explains the group was supposed to submit an affidavit on Jan. 21, 2013, to support their petition and commence the legal process which it didn’t.

But instead the band requested the province and Rubicon to allow it to postpone its application for judicial review until after the Keewatin verdict, the company reported on March 17. Under the consent order, Wabauskang now has to wait 90 days from when the court ruled on the Keewatin case to perfect its application.

“It was never clearly stated why the delay was sought,” Barry Allan, an analyst for Mackie Research, writes in an email. “But I believe that if the province of Ontario’s appeal had failed, then I’m sure the application for judicial review filed by Wabauskang First Nation would have also contained a statement [saying] the Ontario government had no jurisdiction to approve the closure plan.”

Allan says he believes that community is “upset with financial terms offered as compensation, and are using the court system to negotiate a better deal.” 

Candelario says the discussions Rubicon had with Wabauskang to work out a benefits agreement are confidential, but notes the company is still willing to negotiate. He points out Rubicon has “great relationships” with Metis Nation of Ontario and Lac Seul First Nation.

Rubicon is finalizing a benefits agreement with Lac Seul, located near Sioux Lookout. The roughly 2,700-member community is one of the largest in the Treaty 3 region of northwestern Ontario.

Currently, all talks between Rubicon and Wabauskang have been halted as the group decides whether to proceed with the lawsuit. Some analysts predict Wabauskang may have a harder time to prove why the company’s permits should be cancelled with the Keewatin ruling. However, that case, which has left many upset, may end up in the Supreme Court of Canada.

Ontario regional Chief Stan Beardy expressed his disappointment over the Keewatin ruling. “This was a unique opportunity for the Canadian judicial system to support the true spirit and intent of important treaty rights. Instead, the court fell back on dubious and one-sided jurisprudence from over 100 years ago,” he said in a statement issued by the Chiefs of Ontario. “It seems that nothing has changed in Canada.”

Meanwhile, construction on the fully-permitted underground mine at Phoenix is steaming ahead, with production slated for the second half of 2014. A resource update and a potential optimized preliminary economic assessment are expected during the year. The project is poised to produce 180,000 oz. gold a year throughout its 12-year life.

Rubicon maintains it will “vigorously defend its consultation record” and its development of the Phoenix project “in any legal dispute.”