CITATION: Wabauskang First Nation v. Ontario (Natural Resources and Forestry), 2025 ONSC 316
DIVISIONAL COURT FILE NO.: 006/23-JR
DATE: 20250115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, S.T. Bale and Shore JJ.
BETWEEN:
Wabauskang First Nation and Lac Seul First
Luke Hildebrand and William Major, for the
Nation
Applicants
Applicants
– and –
The Northwest Regional Director and The
Sylvia Davis and Charles Hinse-
Red Lake Sioux Lookout District Manager,
MacCulloch, for the Respondents
Northwest Region, Ministry of Natural
Resources and Forestry
Respondents
- and-
The Corporation of the Municipality of Red Lake
Respondent
Allan D. McKitrick and Candace L. Hilchuk for the Respondent, Municipality of Red Lake
HEARD at Toronto: June 17, 2024
REASONS FOR DECISION
Shore J.
[1] The Applicants, Wabauskang First Nation ("Wabauskang") and Lac Seul First Nation ("Lac Seul") apply for judicial review of two decisions of the Respondents to "take up" land pursuant to Treaty No. 3 without the Crown first discharging their constitutional duty to consult the Applicants.
The Impugned Decisions
[2] On July 26, 2023, the Ministry of Natural Resources and Forestry (the "Ministry") made two decisions to facilitate the transfer of land, known as Harry's Corner, to the Municipality of Red Lake ("Red Lake" or the "Municipality"):
(1) The decision of the Ministry's Northwest Regional Director to amend the Crown Land Use Policy Atlas G2514 to facilitate disposition of Crown land for cottaging, residential and urban development in Red Lake; and
(2) The decision of Red Lake Sioux Lookout District Manager, Northwest Region of the Ministry to transfer 168 acres of Crown land, referred to as Harry's Corner, to a corporation owned by the Municipality.
The Applicants
[3] Lac Seul and Wabauskang are Anishinaabe Nations. Wabauskang's reserve is located 100 kilometres south of Red Lake. Lac Seul is comprised of five communities - four communities are located along the shores of Lac Seul. The remaining community, Trout Lake - Namekosipiink - is 30 kilometres northeast of Red Lake.
The Municipality of Red Lake
[4] Red Lake has a large geographic land area but for various reasons, there is little land available for growth and development. The Crown owns approximately 78% of the area. Harry's Corner is 190 acres of Crown land within the Municipality of Red Lake. The Ministry transferred Harry’s Corner to the Municipality for housing and development.
Summary and Disposition
[5] The Applicants argue that their rights under s. 35 of the Constitution Act, 1982 have been breached: (i) due to insufficient consultation, and (ii) the Ministry's failure to obtain the First Nations' consent, prior to transferring Harry's Corner to the Municipality.
[6] For the reasons below, I would dismiss the application for judicial review: the Ministry was not required to obtain the Applicants' consent prior to transferring Harry's Corner to the Municipality and the Ministry met its constitutional obligation to consult.
Background:
[7] The Municipality is facing a housing crisis and is limited in its ability to rectify this crisis without the Ministry transferring land.
[8] At least since 2008, the Municipality has been working towards the development and acquisition of Harry's Corner, and other surrounding lands. They have established road, sewer, and water infrastructure to support the proposed expansion.
[9] In April 2021, the Municipality and the Ministry completed their search for Crown land areas for the purpose of meeting the Municipality’s residential and economic development needs.
[10] Three parcels of land within its municipal boundaries were identified. However, Ministry Staff determined that two of the parcels were not available for disposition to the Municipality because they were located along the shores of Red Lake.
[11] Harry's Corner, the third area, was identified as an appropriate parcel of land for disposition under the Public Lands Act, R.S.O. 1990, c. P.43. Specifically, its proximity to municipal water and sewer infrastructure made it suitable for housing and commercial development.
[12] The Crown Land Use Policy Atlas G2514 (the "CLUPA") governs the Disposition of Crown Land located within the Municipality. A Crown Land Use Policy Atlas sets out permissible uses of Crown land areas. The existing CLUPA did not allow for Crown land disposition for residential and urban development because it was subject to a forest management plan. Therefore, the Ministry could not transfer Harry's Corner to the Municipality without an amendment of the CLUPA.
[13] On November 19, 2021, the Municipality formally requested that the Minister consider an amendment to the CLUPA. This amendment of the CLUPA would enable the disposition of Harry's Corner for residential and urban development. During this same period, the Ministry received feedback from municipalities that the current process for obtaining Crown land for development was difficult.
[14] In January 2022, the Municipality was chosen to participate in a pilot project for a more streamlined approach for the disposition of Crown land.
[15] On March 11, 2022, the Municipality applied to the Ministry for the purchase of Harry's Corner.
[16] On April 1, 2022, the Ministry posted a notice of the proposed CLUPA amendment, on a database used by the Government of Ontario to notify the public about environmental matters, including proposals regarding new or amended policies.
[17] The proposal for the disposition of Harry's Corner was added to another database, accessible online to the public and other ministries.
[18] In April 2022, the Ministry also sought and received consent from Pacton Gold Inc., to dispose of its surface mining rights for Harry's Corner. The consent did not cover subsurface rights.
[19] On April 5, 2022, a notification protocol form was sent to both Wabauskang and Lac Seul, requesting consultation on the proposed CLUPA amendment and the proposed disposition of Harry's Corner. The Ministry received confirmation that the First Nations were notified.
[20] Over the next several months, the Ministry made multiple efforts to schedule meetings with Lac Seul and Wabauskang to consult on the CLUPA amendment and proposed land disposition.
[21] On July 13, 2022, a representative of Wabauskang contacted the Ministry to advise that they would be in touch once they received directions from the Chief and Council. Wabauskang did not communicate further with the Ministry for several months with respect to the proposed transfer of Harry's Corner.
[22] On August 31, 2022, Lac Seul contacted the Ministry to confirm that they had checked the value maps and although there were some value areas nearby, nothing was recorded on Harry's Corner itself.
[23] On October 17, 2022, a meeting took place between Wabauskang, Lac Seul, the Municipality, and the Ministry.
[24] At the meeting, Wabauskang explained that they had an outstanding Treaty Land Entitlement ("TLE") claim against Canada and Ontario.
[25] In 1873 and 1874, the First Nations established a relationship with the Crown known as Treaty No. 3. As part of Treaty No. 3, the Crown promised to set aside reserve land. The Crown failed to set aside sufficient reserve land for Wabauskang. In 1993, Wabauskang filed a TLE claim.
[26] The TLE negotiation process includes determining an amount of land to be added to a reserve and the specific geographic areas that are of interest to the First Nation community as additions to the reserve.
[27] In 2015, Ontario and Wabauskang entered active negotiations with the Ministry of Indigenous Affairs. In 2019, Wabauskang began its land selection process.
[28] During the October 17, 2022, meeting, Wabauskang advised that they were interested in Crown lands and were concerned about the lack of unencumbered lands. There is dispute as to whether Harry's Corner was identified at that time.
[29] At the meeting, Lac Seul, again, indicated that they were unaware of any value areas within Harry's Corner.
[30] One month after the meeting, Wabauskang sent a letter to the Ministry representative, objecting to the proposed amendment to the CLUPA and the disposition of Harry's Corner to the Municipality on the basis that:
(a) Wabauskang has communicated concerns that mining activities were reducing available Crown lands for the TLE process;
(b) Wabauskang has now identified Harry's Corner for its ongoing TLE negotiations with Ontario; and
(c) Wabauskang opposed any changes to CLUPA until the community had identified potential lands for the TLE process.
[31] On November 29, 2022, another consultation meeting took place. At the meeting Wabauskang expressed the following concerns:
(a) Wabauskang was seeking ideal lands for commercial and residential development as part of the TLE land selection process;
(b) There was need for housing near the Red Lake District High School for students from the community; and
(c) The proposed CLUPA amendment may increase land encumbrances and interest in lands by third parties.
[32] Wabauskang requested that the CLUPA amendment and disposition of Harry's Corner be paused until the community finished the TLE land selection process. As of the November 29th meeting, the lands subject to the TLE process had not been formally identified to the Ministry of Indigenous Affairs.
[33] Lac Seul also indicated that they were interested in economic development in the area and both First Nations wanted to be part of the decision-making process, along with the Ministry and the Municipality.
[34] The meeting ended, and the Ministry suggested that the Municipality and the First Nations discuss finding accommodations to the First Nations' interests.
[35] Between November 2022 and February 2023, the Ministry and the First Nations exchanged letters.
[36] In a letter from the Ministry to Wabauskang, dated February 24, 2023, they stated that the Ministry remains committed to and interested in understanding the impact of both the pending CLUPA amendment and the proposed disposition of Crown land on the community's Aboriginal or treaty rights and would like to continue discussions on how the Ministry and Red Lake "may accommodate Wabauskang's future development interests and needs."
[37] On May 5, 2023, a year after the Ministry's consultation began, the Ministry received a letter from the Ministry of Indigenous Affairs, advising that with respect to Harry's Corner, community members “used to exercise hunting and fishing rights within the Subject Land and have identified fish spawning sites and a historical trading post within or near the Subject Land." However, the assertion related to past, and not current harvesting practices, because there was a municipal bylaw in place prohibiting the discharge of firearms.
[38] On June 6, 2023, the Ministry received a similar letter from Wabauskang, stating their longstanding interest in the area as a historic fishing, hunting, and trading ground for their members.
[39] On June 7, 2023, the Ministry was copied on a letter from the Ministry of Indigenous Affairs to Wabauskang, explaining that Harry's Corner was not available as an area of interest because of a mining claim and the proposed disposition to the Municipality.
[40] After attempting to call the Chief of Wabauskang, the Ministry sent a letter to the Applicants, dated July 26, 2023, advising that the decision had been made to amend the CLUPA and proceed with the disposal of Harry's Corner to the Municipality. The letter explained that:
(a) The Ministry of Indigenous Affairs confirmed that Harry's corner was not identified as an area of interest at the time for the purpose of the TLE,
(b) Neither the Ministry nor the Ministry of Citizenship and Multiculturalism had any information on historic sites at or near Harry's Corner,
(c) The lake inside Harry's Corner and the access to it will be protected,
(d) Under the terms of Treaty 3, Ontario has the power to take up lands, subject to the duty to consult. Since April 2022, the Ministry has made every effort to fulfill its obligation to understand and mitigate impacts to the First Nations, and
(e) The Ministry wanted to meet to offer support in identifying Crown lands which may be suitable for Wabauskang's interests.
[41] The Applicants objected to the decision, stating that both First Nations' consent is required before the Crown can take up land.
Positions of the parties:
[42] The Applicants submit that:
(i) The Ministry has no right to take up land under Treaty No. 3,
(ii) The duty to consult is at the higher end of the scale due to the TLE process and the Ministry did not fulfill its obligation
and therefore, there was a breach of their rights under s.35 of the Constitution Act, 1982.
[43] The Ministry submits that:
(i) It owed a duty to consult,
(ii) The duty was at the low end of the spectrum, and
(iii) The consultation process was reasonable and fulfilled all consultation requirements.
Analysis:
[44] The issues before this Court are as follows:
(i) The standard of review,
(ii) The effect of Treaty No. 3 on the right of the Ministry to take up land,
(iii) The effect of the TLE process on the Ministry's ability to dispose of Harry's Corner,
(iv) The level of consultation required by the Ministry, and
(v) Whether the Ministry satisfied its duty to consult.
Standard of Review:
[45] The Ministry's interpretation of Treaty No. 3 and the effect of the TLE process on the Ministry's ability to dispose of land, are questions of law and reviewable on a standard of correctness: see Haida Nation v. British Columbia (Minister of Forests), 2004 SCC 73, [2004] 3 S.C.R. 511, at para. 63, Association of Iroquois and Allied Indians v. Ontario (Minister of Environment, Conservation and Parks), 2022 ONSC 5161, at para. 7 and Fletcher v. Ontario, 2024 ONCA 48 at para. 54.
[46] The Divisional Court's recent decision in Association of Iroquois, set out the standard of review on consultation issues. At paras. 6-7, the court cited the Supreme Court of Canada ("SCC") in Haida Nation and held that:
[7] Crown decisions as to whether there are duties to consult or accommodate are reviewable on a standard of correctness. The Crown's assessments of the extent of these duties are generally questions of law, reviewable on a standard of correctness, because they define legal duties. Thus, if the Crown misconceives the seriousness of a claim or the impact of an infringement, this will be reviewable on a standard of correctness. That said"scoping" the duty to consult can involve questions of fact and, where it does, the Crown's factual findings are reviewed on a standard of reasonableness.
[8] The "effect of good faith consultation may be to reveal a duty to accommodate." The determination of the process to be followed for consultation and, if necessary, accommodation, are reviewable on a standard of reasonableness.
The effect of Treaty No. 3 on the Ministry's ability to take up land:
[47] The Applicants submit that pursuant to Treaty No. 3, the land is to be shared and cannot be surrendered. The Ministry has no right to unilaterally take up land.
[48] The Ministry's obligations under, and interpretation of Treaty No. 3 were addressed in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, [2014] 2 S.C.R. 447. The SCC found that Ontario has the authority to take up lands under Treaty No. 3, subject to the duty to consult: Grassy Narrows, at paras. 50-52. This duty to consult does not include a right of veto for the First Nations: see Haida Nation, at para. 10.
[49] Therefore, I find that the Ministry did not err in its determination that it had a duty to consult and not a duty to reach an agreement or consensus under Treaty No. 3.
The TLE process:
[50] Wabauskang submits that the CLUPA amendment and the disposition of Harry's Corner should wait until the community finishes the selection process for lands under the TLE.
[51] The court has previously addressed this issue. In Platinex v. Kitchenuhmaykoosib Inninuwug First Nation & A.G. Ontario, 2007 16637 (ON SC), the court refused to grant an interlocutory injunction requested by the K.I. First Nation against a mining company. K.I. argued the injunction was necessary because it had submitted a TLE claim that included the area upon which the mining company was conducting mineral exploration activities. The court stated that the treaty does not give First Nations the right to select land unilaterally, nor does it provide K.I. with a veto.
[52] Wabauskang did not officially identify Harry's Corner as an area of interest until November 2022. Wabauskang did not formally inform the Ministry of Indigenous Affairs of its interest in Harry's Corner until May 3, 2023. The Ministry of Indigenous Affairs did not agree to identify Harry's Corner as an area of interest at the time.
[53] As set out in Platinex, the TLE agreement does not give the First Nations the right to choose land unilaterally or to provide them with a veto. I find no error in the Ministry's position regarding the effect of the TLE process on their ability to take up and transfer Harry’s Corner.
Scope of consultation required and adequacy of the consultation:
[54] Section 35 of the Constitution Act, 1982 provides as follows:
35(1) The existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.
35(3) For greater certainty, in subsection (1) treaty rights includes rights that now exist by way of land claims agreements or may be so acquired.
[55] As set out by the Federal Court of Appeal in Canada (Attorney General) v. Long Plain First Nation, 2015 FCA 177, 388 DLR (4th) 209, at para. 118:
The reconciliation of Aboriginal and non-Aboriginal Canadians in a mutually respectful long-term relationship is the grand purpose of s. 35 of the Constitution Act, 1982. The modern treaties, including those at issue here, attempt to further the objective of reconciliation not only by addressing grievances over the land claims but by creating the legal basis to foster a positive long-term relationship between Aboriginal and non-Aboriginal communities. Thoughtful administration of the treaty will help manage, even if it fails to eliminate, some of the misunderstandings and grievances that have characterized the past. Still, as the facts of this case show, the treaty will not accomplish its purpose if it is interpreted by territorial officials in an ungenerous manner or as if it were an everyday commercial contract. The treaty is as much about building relationships as it is about the settlement of ancient grievances. The future is more important than the past. A canoeist who hopes to make progress faces forwards, not backwards.
[56] As set out above, Treaty No. 3 allows the Ministry to take up land, subject to the duty to consult. As such, the duty to consult is protected by the constitution. The requirements to fulfill the duty will vary with the circumstances of each individual case.
[57] In determining the level or scope of consultation required, the Ministry must consider that the purpose of consultation is to promote reconciliation. As Lamer C.J.C. stated in Delgamuukw v. British Columbia, 1997 302 (SCC), [1997] 3 S.C.R. 1010, at para. 186:
Ultimately, it is through negotiated settlements, with good faith and give on all sides, reinforced by the judgment of this Court, that we will achieve ... the basic purpose of s. 35(1) - the reconciliation of the pre-existence of Aboriginal societies with the sovereignty of the Crown.
[58] The duty is an incident arising from the honour of the Crown, and this informs the level of consultation required and whether the duty has been satisfied. As set out in Haida Nation, at paras. 19 and 32:
The honour of the Crown also infuses the processes of treaty making and treaty interpretation. In making and applying treaties, the Crown must act with honour and integrity, avoiding even the appearance of "sharp dealing" (Badger, at para. 41). Thus, in Marshall, supra, at para. 4, the majority of this Court supported its interpretation of a treaty by stating that "nothing less would uphold the honour and integrity of the Crown in its dealings with the Mi'kmaq people to secure their peace and friendship."
The jurisprudence of this Court supports the view that the duty to consult and accommodate is part of a process of fair dealing and reconciliation that begins with the assertion of sovereignty and continues beyond formal claims resolution. Reconciliation is not a final legal remedy in the usual sense. Rather, it is a process flowing from rights guaranteed by s. 35(1) of the Constitution Act, 1982. This process of reconciliation flows from the Crown's duty of honourable dealing toward Aboriginal peoples, which arises in turn from the Crown's assertion of sovereignty over an Aboriginal people and de facto control of land and resources that were formerly in the control of that people. As stated in Mitchell v. M.N.R., [2001] 1 S.C.R. 911, 2001 SCC 33, at para. 9"[w]ith this assertion [sovereignty] arose an obligation to treat aboriginal peoples fairly and honourably, and to protect them from exploitation."
[59] The controlling question in all cases is what is required to maintain the honour of the Crown and to promote reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake: Haida Nation, at para. 45.
[60] At all stages, good faith is required by the Crown. The common thread on the Crown's part must be "the intention of substantially addressing [Aboriginal] concerns" as they are raised (Delgamuukw, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation.
[61] As for Aboriginal claimants, they must not frustrate the Crown's reasonable good faith attempts, nor should they take unreasonable positions to thwart the government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, 178 DLR (4th) 666; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management), 2003 BCSC 1422, 19 B.C.L.R. (4th) 107.
[62] In Haida Nation, the SCC outlined the framework for the Ministry's duty to consult and accommodate claims asserted and rights by First Nations before the claims have been decided. The TLE claims are asserted claims. A peripheral claim may attract a mere duty of notice. A stronger claim may attract more stringent duties. What is required from the government varies with the strength of the claim and the circumstances, but it must be consistent with the honour of the Crown: see Haida Nation, at paras. 37 and 38.
[63] Although claims might not be established, it is possible to assess the strength of an asserted claim, and in particular, whether the claim is sufficient to trigger an obligation to consult. For example, the SCC found that the Haida's claim of title to the land was strong, although it would take years to prove.
[64] The scope of the duty to consult is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed: Haida Nation, at para. 39.
[65] I find the Applicants' claim in this case to be on the weaker side. My reasons include:
(a) The Ministry and the Red Lake Management Company ("RLMC") developed a forest management plan (tree farm licence) between 2017 to 2019. RLMC held a sustainable forest licence for the area. The plan identified Harry's Corner as an area to be harvested for its timber. While the Ministry and RLMC developed the forest management plan, the Ministry attended more than ten planning meetings. Neither First Nation objected to Harry's Corner being designated for harvesting and neither indicated that Harry's Corner was of particular interest to them. Wabauskang provided a Background Information Report ("BIR"). The BIR, among other things, is meant to highlight areas or issues of significance to the First Nation. The BIR did not mention Harry's Corner.
(b) In May 2022, the Ministry of Citizenship and Multiculturalism determined that the potential for significant archeological or cultural sites in Harry's Corner was low. There were no known archaeological or cultural sites within 1,800 metres of the center point of the proposed disposition area. Therefore, no archeological assessment was required.
(c) Further, Harry's Corner did not contain any known values identified by the First Nations in any previous consultations or internal Crown due diligence. Value maps are mapping products created and held by each Indigenous community. The maps identify sites known to be important to that community. These may include, but are not limited to, burial, spiritual, or cultural sites, as well as fishing and hunting locations.
(d) The Ministry of Indigenous Affairs confirmed that Harry's corner was not identified as an area of interest at the time for the purpose of the TLE.
(e) The Applicants are entitled to more reserve land under the TLE process, but they do not have the right to unilaterally select the land.
(f) Neither the Ministry nor the Ministry of Citizenship and Multiculturalism had any information on historic sites at or near Harry's Corner.
(g) On August 31, 2022, Lac Seul contacted the Ministry to confirm that they had reviewed the value maps and although value areas existed nearby, noting Harry's Corner had no recorded value.
(h) During the October 17, 2022, meeting, Wabauskang advised that they were interested in Crown lands and were concerned about the lack of unencumbered lands. However, Wabauskang did not identify any specific geographic area as an area of interest to the Ministry of Indigenous Affairs. There is dispute as to whether Harry's Corner was identified at that time.
(i) At the October 17, 2022, meeting, Lac Seul, again, indicated that they were unaware of any values within Harry's Corner.
(j) Wabauskang sought ideal lands for commercial and residential development as part of the TLE land selection process, not specific to this land.
(k) On May 5, 2023, a year after the Ministry's consultation began, the Ministry received a letter from the Ministry of Indigenous Affairs, advising that with respect to Harry's Corner, community members had “used to exercise hunting and fishing rights within the Subject Land and have identified fish spawning sites and a historical trading post within or near the Subject Land." However, the assertion related to past, and not current harvesting practices.
(l) On June 7, 2023, the Ministry of Indigenous Affairs copied the Ministry on a letter to Wabauskang, explaining that Harry's Corner was unavailable as an area of interest because of a mining claim and the proposed disposition to the Municipality.
[66] Therefore, the Ministry's duty to consult was at the lower end of the spectrum.
[67] However, even at the lower end of the spectrum, the duty can require significant conduct by the Crown. This may include providing notice to the First Nation, engaging directly with the First Nation, providing timely information about matters relevant to known First Nation interests, providing information about potential adverse impacts on those interests so that concerns can be expressed, listening to concerns expressed, considering those concerns, and attempting to minimize any adverse effects: Mikisew Cree First Nation v. Canada (Minister of Canadian Heritage), 2005 SCC 69, [2005] 3 S.C.R. 388, at para. 64.
[68] The Applicants rely on the decision of Canada (Attorney General) v. Long Plain First Nation, 2015 FCA 177, 388 DLR (4th) 209. In that case, the First Nations wanted a specific piece of land for development and alleged a breach of duty to consult. At para. 124, the Federal Court of Appeal determined the level of consultation as follows:
Canada must be in close and meaningful communication with the four respondents, give them relevant information in a timely way, respond to relevant questions, consider carefully their fully-informed concerns, representations and proposals, and, in the end, advise as to the ultimate course of action it will adopt and why.
[69] However, the Federal Court of Appeal stated that the government was not limited to considering only the duty to consult and the specific terms of the TLE but could have regard to other policy considerations and competing societal concerns: Long Plain First Nation, at para. 128.
[70] I find that the Ministry properly assessed its duty to consult and fulfilled its obligation. As set out above, the adequacy of the consultation is reviewed on a reasonableness standard. Perfection is not required: see Haida Nation, at para. 62. The Ministry provided notice, engaged directly with the First Nations, provided timely information, considered the claims and concerns, and remained open to addressing those concerns.
[71] On April 5, 2022, the Ministry began its consultation with the Applicants. Formal meetings took place on October 17, 2022, and November 29, 2022. These meetings were in addition to calls, letters, and emails throughout the process. The communications continued until July 26, 2023, when the Applicants were notified of the Ministry's decision to approve the CLUPA amendment and the disposition of Harry's Corner to the Municipality.
[72] Although the parties were unsuccessful in reaching an agreement, the consultations were helpful in identifying the Applicants' concerns and needs. The Ministry listened to the Applicants' views and concerns. On July 28, 2024, the Ministry sent a letter to the Applicants. The letter invited the Applicants to discuss their interest in Crown lands and for the Ministry to look for possible lands that may meet their needs.
[73] Additionally, the Municipality advised the Applicants that they remain open to continuing discussions to include housing on Harry's Corner, including housing for Wabauskang high school students who currently must travel long distances to attend school.
[74] There were several meetings and consultations that occurred between the Applicants, the Ministry, and the Municipality, all in good faith.
[75] As such, I find that the Ministry’s conclusion that they met their duty to consult is reasonable in this case.
Disposition:
[76] The Ministry did not err in law in determining its duty to consult. The Ministry did not err in determining the scope of its duty, and it fulfilled its obligation.
[77] I would therefore dismiss the application for judicial review.
[78] The Applicant shall pay costs to the respondent Municipality, fixed at $7,500 inclusive, payable within 30 days. The other Respondents do not seek costs and therefore no costs order is made in their favour.
[79] On consent, the title of proceedings is amended to correct the name of a party by adding "THE NORTHWEST REGIONAL DIRECTOR and THE RED LAKE SIOUX LOOKOUT DISTRICT MANAGER, NORTHWEST REGION, MINISTRY OF NATURAL RESOURCES AND FORESTRY" as respondents in place of "HIS MAJESTY THE KING IN RIGHT OF ONTARIO as represented by the MINISTRY OF NATURAL RESOURCES AND FORESTRY".
“Shore J.”
I agree
“D.L. Corbett J.”
I agree
“S.T. Bale J.”
Released: January 15, 2025
CITATION: Wabauskang First Nation v. Ontario (Natural Resources and Forestry), 2025 ONSC 316
DIVISIONAL COURT FILE NO.: 006/23-JR
DATE: 20250115
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. CORBETT, S.T. BALE, SHORE JJ.
BETWEEN:
Wabauskang First Nation and Lac Seul First Nation
Applicants
– and –
The Northwest Regional Director and The Red Lake Sioux Lookout District Manager, Northwest Region, Ministry of Natural Resources and Forestry
Respondents
- and-
The Corporation of the Municipality of Red Lake
Respondent
REASONS FOR DECISION
Released: January 15, 2025