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Injunction is dissolved, but lawsuit to stop mineral exploration near Ginoogaming continues

The injunction was directed at Geraldton-based companies whose exploration permits have expired
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TORONTO — A Superior Court judge has dissolved an interim injunction prohibiting exploratory mining activities in an area of Ginoogaming First Nation's traditional territory that it has declared to be sacred and culturally significant.

But two Geraldton-based companies affected by the injunction, Michael Malouf's Quaternary Mining & Exploration and Hardrock Extension Inc., are still not free to explore in a 360-square-kilometre area Ginoogaming calls Wiisinin Zaahgi'igan.

Because the three-year permits he received from the Ontario government expired last June, Malouf would have to submit new applications.

In the midst of the ongoing dispute that has evaded resolution through court-ordered consultation between Ontario and Ginoogaming, he has stated that he has no intention of trying for new permits "at this time." 

A court hearing was scheduled for last Friday to reconsider Ginoogaming's original request for an interlocutory injunction pending the resolution of a lawsuit it has filed against Ontario and against Malouf's companies.

But in a late development, the First Nation instead asked for the hearing to be adjourned, and that the court grant a further six months to allow for more consultations among the parties.

When she issued an interim injunction In September 2021, Justice Susan Vella had directed that they "renew and continue meaningful consultation," which in her view was "necessary to promote the goal of reconciliation."

After Friday's hearing, the judge said affidavits submitted to the court demonstrated that no progress had been made towards reconciliation since then, and that she did not feel it would be appropriate to adjourn the motion and order further discussions.

Ginoogaming then withdrew its motion, which in turn resulted in the dissolution of the interim injunction.

Its lawyer, Kate Kempton, told TBnewswatch that if Malouf applies for new permits in Wiisinin Zaahgi'gan, the First Nation will return to court seeking the same injunction.

But she said it now plans to focus on the underlying lawsuit to get permanent protection for that area "rather than be back and forth in court arguing for shorter-term protections through injunctions while that bigger case is pending."

Malouf remains concerned about the province's actions.

"There's no longer any effective land tenure," he said. "They've dressed it up in the duty to consult, which sounds very noble and respectful, but really in practice it means we have to get permission from First Nations. There are five of them [in the Geraldton area] and any one of them can hold us up."

Ginoogaming's lawsuit, which seeks a declaration that it has Aboriginal rights to protect sacred areas, could create a precedent in Canadian law.

"Our rights cannot be reduced to only harvesting on the land," Chief Sheri Taylor has stated.

Malouf feels the case will dissuade mining companies from investing.

"How can they expect people to come in here and spend major dollars without an assurance their land won't be taken away from them?" he said.

In her written decision, Justice Vella said "Notwithstanding that I have not directed further discussions, the parties are encouraged to re-engage in constructive discussions towards the ultimate goal of reconciliation."




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