The Waubauskang and Lac Seul First Nations were seeking judicial review of two decisions by the province to “take up” land under Treaty No. 3, one of the “numbered treaties” signed by Indigenous peoples and the Crown in the late 19th- and early 20th-centuries.
In summer 2023, the Ministry of Natural Resources and Forestry made two decisions to facilitate a transfer of land known as Harry’s Corner to the municipality of Red Lake, which is approximately 500 kilometres north of Thunder Bay. The two First Nations said the transfer breached their rights under s. 35 of the Constitution Act, 1982, because of insufficient consultation and the ministry’s failure to obtain their consent prior to the transfer.
But a three-judge divisional panel of the Ontario Superior Court has now ruled against the First Nations, saying the province was not required to get their consent and met the constitutional duty to consult.
“The adequacy of the consultation is reviewed on a reasonableness standard. Perfection is not required,” Justice Sharon Shore wrote. “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.”
Justice Shore noted that the Ministry of Natural Resources’ obligations were addressed in Grassy Narrows First Nation v. Ontario (Natural Resources), 2014 SCC 48, where the Supreme Court found that Ontario has the authority to take up lands under Treaty No. 3, subject to the duty to consult.
“This duty to consult does not include a right of veto for the First Nations,” she wrote. “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.”
As a result of her findings, Justice Shore dismissed the applications for judicial review. She was joined by Justices David Corbett and Stephen Bale in her ruling (Wabauskang First Nation v. Northwest Regional Director, 2025 ONSC 316).
A spokesperson for the Ministry of Natural Resources said in an email that the province is still reviewing the decision but appreciates the court’s endorsement of its approach to consultation.
“Consultation promotes reconciliation, which is incredibly important to this Ministry and Ontario as whole,” the spokesperson said.
Counsel for the two First Nations did not respond to a request for comment.
If you have any information, story ideas or news tips for Law360 Canada, please contact Ian Burns at Ian.Burns@lexisnexis.ca or call 905-415-5906.