William Major

The applicant First Nations sought judicial review of the Ministry's decisions to amend a Crown Land Use Policy Atlas and transfer a parcel of Crown land to the Municipality of Red Lake for housing development.

The applicants argued the Ministry breached its duty to consult under s. 35 of the Constitution Act, 1982, and failed to obtain their consent.

The Divisional Court dismissed the application, finding that Treaty No. 3 allows the Crown to take up land subject to a duty to consult, which does not amount to a First Nation veto.

The court held that the duty to consult was at the lower end of the spectrum and that the Ministry's consultation process was reasonable and fulfilled its constitutional obligations.

The appellant municipality was successful on appeal and sought costs for the proceedings before the application judge and the Court of Appeal.

The Court of Appeal awarded costs to the appellant on a party and party basis.

Ontario was ordered to pay the costs of the application ($50,000), factum motion ($2,000), and appeal ($35,000).

Lac Seul First Nation and Northern Nishnawbe Education Council were ordered to pay the costs of the stay motion ($6,000).

No costs were awarded for or against Canada.

The appellant municipality appealed a declaration that it was responsible for maintaining two roads leading to a First Nation reserve and an education centre following a municipal restructuring order.

The application judge had found the roads became municipal highways through statutory dedication under the Municipal Act and common law dedication by conduct.

The Court of Appeal allowed the appeal, holding that the Municipal Act provisions relied upon explicitly excluded provincial roads under Crown control.

Furthermore, the common law doctrine of dedication and acceptance could not apply because the public already enjoyed a statutory right of passage under the Public Lands Act, and the province had failed to use the available statutory mechanisms to transfer the roads.