GREENSTONE — A Geraldton-based prospector is upset after being removed from a lawsuit by Ginoogaming FIrst Nation over mineral exploration in its traditional territory.
The First Nation unexpectedly served a Notice of Discontinuance last month to halt its court case against Michael Malouf and another area prospector, while continuing the same action against the Ontario government.
The move came just weeks before a scheduled court hearing — now cancelled — of an application by Malouf to transfer the case from Toronto to Thunder Bay.
That application was opposed by Ginoogaming.
In a notice of motion, Malouf had argued that that Thunder Bay was the more appropriate location for the trial because the District of Thunder Bay was where all the events that gave rise to the dispute have occurred, because the outcome will have reverberating effects on the mining and natural resources industries in the district, and because "the Thunder Bay court is naturally far better informed of and sensitive to the realities of the local Indigenous, mining and natural resource issues."
Ginoogaming Chief Sheri Taylor, in an affidavit, stated it is too early in the litigation process to determine the appropriate venue for the eventual trial.
She maintained that many of the questions in dispute have arisen in Toronto, such as the relationship between the First Nation and the provincial government, and that Toronto is a more convenient location for lawyers for the First Nation and Ontario, along with many expert witnesses.
Taylor said changing the venue at this point would be neither cost-effective nor practical for Ginoogaming.
As it turned out, it became unnecessary to hear the application for the venue change after the First Nation on July 27 opted to discontinue the case against Malouf and the other prospector.
On Aug. 9, a Superior Court justice in Thunder Bay declared the motion moot, stating that Malouf no longer had standing in the action, and that his court did not have jurisdiction to consider the matter, which remains in Toronto.
"By being dropped from the lawsuit, we have been stripped of our right to speak up for and defend our livelihood in court, which continues to be at stake in the lawsuit, regardless of whether or not we are named defendants," Malouf told Dougall Media on Wednesday. "We no longer have a say on how long [it will be] until this action is heard at trial."
In an action started in 2020, Ginoogaming First Nation sought a declaration that it has Aboriginal rights to protect from industrial development a 260-square-kilometre area near its reserve that it considers sacred.
It was also seeking $80 million in compensation from the province and Malouf for past harms allegedly caused by exploratory work in the area it calls Wiisinin Zaahgi'igan, and for an alleged breach of the government's duty to consult and accommodate the First Nation when it issued exploration permits.
Ginoogaming has identified part of the same area as a preferred target for the expansion of its reserve under a Treaty Land Entitlement Claim, and has said that Ontario and Canada previously agreed to enter negotiations with the First Nation regarding land selection.
Malouf is no longer needed in the case, lawyer states
The lawyer for the First Nation, Kate Kempton of Woodward and Company, said in a statement that "Malouf was a more major player a couple of years ago, [over] the threat his imminent exploration posed to Ginoogaming and this sacred area."
Since then, however, his exploration permit has expired, and a permit application by the other prospector is not currently being pursued, so Kempton said "we do not need them in the case."
She said the court case "was always mainly against Ontario as the Crown government that has made decisions and issued permits that have infringed GFN's rights."
But Kempton added that if the exploration firms apply again for permits, and Ontario issues permits to explore in Wiisinin Zaahgi'igan, "we would likely have to challenge that issuance in court... We hope this does not occur. If there are no such applications and permits issued, then there is no need for us to have any other court case but the one we have already brought (now just against Ontario)."
Malouf is in a tight spot, as a new exploration permit is required in order for him to continue holding on to his mining claims without the risk of them coming open.
He feels the discontinuance has essentially created an out-of-court permanent injunction preventing him from any further exploration.
Malouf said he still "hopes and prays" there will be some kind of resolution that will compensate him for the decades of work and the millions of dollars he said he has put into exploration in the area.
But he warned that "If things continue as they are in Ontario, everyone will suffer from the economic consequences of our essential industries frozen by gruelling litigations like the one we have been dragged through over the past three years."
He's also displeased with the province for not challenging Ginoogaming's declaration of a sacred area, saying that claim is unproven, and that it was "a new thing they came up with after years of consultation with us where they didn't mention it at all."
He said that as long as the path to a trial is delayed, "the validity of the sacred area narrative will remain unopposed."
Chief Taylor has asserted that its interest and ancestral connection to the area dates back millennia, describing it not only as the First Nation's "breadbasket" where it gets food, medicines and other materials, but also an area where its ancestors are buried, and where people go to pray.
She refuted the allegation that the community's interest in Wiisinin Zaahgi'gan is novel, saying it has always endeavoured to take special care of the territory.
In an interview in January, Kempton commented that Ginoogaming would have preferred that the province buy out Malouf, and that Wiisinin Zaahgi'gan be turned into an Indigenous Protected and Conserved Area, something for which she said there are precedents elsewhere in Canada.
