Commentary: Road to Ring of Fire is paved with legal briefs

Now that Cliffs Natural Resources has finally won a round in Ontario’s legal system, are they any closer to gaining access to their Ring of Fire chromite motherlode?

Initially they lost a procedural ruling to Matawa First Nations over caribou studies. Then they lost two Mining Commission rulings to junior miner KWG Resources/CCC over who controls the right-of-way. That’s the only north–south route in — all of which is under mining claim to KWG/CCC.

But losing three in a row prompted Cliffs to up and leave, with vice-president Bill Boor telling Northern Ontario Business that “you can’t mine in the Ring of Fire if you can’t get materials in and product out … It’s hard for us to continue spending a pretty significant amount of money, month in and month out, on a project that the government has said we don’t have land for … I think we’re kind of going to be in the position of not being able to move forward if we don’t have land.”

It was lack of legal access to the discovery site that drove Cliffs out — more so than lack of physical infrastructure. But now Cliffs’ luck might be changing on account of finally winning before the Divisional Court, in a ruling that allows them to apply for an easement along the top of KWG/CCC claims.

However in so doing, Cliffs still has to be mindful of everybody else’s rights.

Here are the key paragraphs that vacate Cliffs’ two previous legal losses before the Mining Commission, and which provide guidance going forward, but coming with serious legal qualifications for Cliffs:

[Paragraph 103 ]  “… does not deprive CCC of its ability at the next stage to oppose Cliffs’ easement application or to ask for conditions that would protect its mining claims.”

[Paragraph 110] “… a matter for the Minister of Natural Resources to determine, after an environmental assessment and consultation with First Nations, and other affected interests. It is for the Minister to determine whether the easement should be granted in the public interest and on what terms. CCC will be able to participate in that process.”

[The above excerpts are from Cliffs vs KWG/CCC 2014 ONSC. Italics and underline by author.]

So whether Cliffs gains access to its discovery is ultimately going to be a political decision, and after an environmental review, and again after discharging the duty to consult and accommodate respecting natives, and whatever else comes into play.

Employing a baseball analogy, the infield looks like this: Cliffs has just hit a single, the environmental review is playing second base, First Nations are defending third, and Minister Mauro is umpiring behind homeplate. And Cliffs’ dugout is in disarray, with new management taking over the franchise back at headquarters. 

Hopefully Cliffs will make it around the bases. If and when they do, they will almost certainly have rewritten the project rulebook for mining in Ontario.

That’s because the latest ruling stands as a legal primer: a testament to the fact that apparently everyone involved in the administration of mining claims in Ontario needed to go back to Mining 101 for a refresher course in order to do their jobs.

So the road to the Ring of Fire may well be paved with legal briefs. Who knew!

— Based in Waterloo, Ont., Bill Gallagher LL.B. is an experienced strategist in the dynamic area of native, government and corporate relations, and is an authority on the rise of native empowerment in the Canadian resources sector. He is author of Resource rulers: Fortune and folly on Canada’s road to resources. Visit www.billgallagher.ca for more information, including book excerpts and a blog.

[Editor’s note: Resource Rulers is highly recommended reading for anyone involved with First Nations and resource extraction issues in Canada.]