The next two decisions in the matter of 2274659 ONTARIO INC. versus CANADA CHROME CORPORATION are whether Neskantaga's request for party status will be granted and the admissibility of KWG's sealed evidence.
Eventually, if granted "party status", the Neskantaga FN can petition the tribunal to transfer the case to the Ontario Superior Court of Justice and that could be moved to the Ontario Court of Appeals, which could then be moved to Canada's Supreme Court. Ontario's neglect to consult in advance of agreements with Cliffs as per Aborginal treaties, and Canada's CEAA acceptance of the less stringent "Comprehensive Study Environmental Assessment" (EA) process, instead of a full Joint Review Panel (EA) are some of the issues.
Ten sections of KWG's evidence were "sealed" by the Mining Commission office in early June after 2274659 ONTARIO INC. requested the Interim Order and interim ex parte order at the end of May. The Commissioner has not decided whether this evidence will be admissible to the proceedings and/or public record.
Three persons are currently under a suppression order, as they were present at the public tribunal on July 6th, and heard the most contentious sealed KWG testimony, particularly two sentences, read out loud by one of KWG's lawyers, Neal Smitheman. It's anyones guess but those two sentences might reveal FreeWest's contractual duty to mine Big Daddy first upon KWG's delivery of a commercially viable marketing and transport plan to bring the chromite ore to market.
Smitheman is no stranger to the plight of Ontario's junior resource companies, given the lack of leadership by the province and it's Securities Commission and Canada.
A landmark 2004 Supreme Court of Canada decision said the Crown has a “duty to consult” native bands about development on Crown land that is considered part of a band’s traditional territory. Courts have allowed governments to delegate part of this duty to resource companies, many of whom then negotiate agreements with native groups.
But there is a growing backlash among junior miners about these agreements.
“There’s a revolt taking place, frankly,” said Neal Smitheman, a lawyer with Fasken Martineau DuMoulin LLP who acts for junior mining firms in disputes with aboriginal groups and who spoke at the Toronto meeting. “What’s being asked of them has nothing to do with consultation. It has everything to do with compensation.”