Court rules First Nations’ prior consent is not required for land transfer
Two First Nations have failed to persuade a court Ontario is breaching their rights by transferring some Crown land to the Municipality of Red Lake without their consent.
The land in question is a 190-acre parcel within Red Lake’s boundaries known as Harry’s Corner.
Wabauskang and Lac Seul First Nations applied for a judicial review of the MNR’s decision in 2023 to transfer it to the municipality for cottaging, residential and urban development.
They argued their constitutional rights were violated because they weren’t adequately consulted and because the ministry failed to obtain their consent.
Wabauskang’s reserve is about 100 kilometres south of Red Lake.
Lac Seul First Nation is comprised of five communities, one of which – Trout Lake-Namekosipiink – is 30 kilometres northeast of the municipality.
According to a recently-released decision in Divisional Court, Red Lake needs land to deal with a shortage of housing, and has been working toward the development and acquisition of Harry’s Corner and other surrounding land since 2008.
Preparations have included road, sewer and water connections to the vicinity.
When the municipality formally applied for the purchase of Harry’s Corner in March 2022, the MNR notified Wabauskang and Lac Seul the next month to request consultation.
It then made multiple efforts to schedule meetings with the two communities.
In July of that year, a representative of Wabauskang advised the ministry the First Nation would be in touch later, but there was no communication with the MNR for several months.
In August, Lac Seul informed the ministry it had checked maps it had created to identify important sites, and had found some values nearby but nothing on Harry’s Corner itself.
But in October 2022, at a meeting involving the two First Nations, the MNR and the municipality, Wabauskang brought up an outstanding Treaty Land Entitlement (TLE) claim.
In 1873/74, under Treaty No. 3 the Crown promised to set aside reserve land, but failed to set aside enough for Wabauskang, which filed a TLE claim in 1993.
After years of negotiation with the province, in 2019 it began the process of selecting land to be added to its reserve.
During the October 2022 meeting, Wabauskang advised it was interested in Crown lands, but the parties disagree on whether Harry’s Corner was specifically mentioned.
Lac Seul again indicated at the meeting it was unaware of any value areas within Harry’s Corner.
A month later, Wabauskang sent a letter to the province identifying Harry’s Corner for ongoing TLE talks with Ontario.
At a meeting that followed, it said it needed land for commercial and residential development, including for housing for students from the community who attend high school in Red Lake.
The First Nation requested the disposition of Harry’s Corner to be paused until it completed its land selection process.
Lac Seul also indicated its interest in economic development in the area, and both First Nations wanted to be part of the decision-making process with the ministry and the municipality.
Over the following four months, the MNR and the First Nations exchanged letters, including one from the ministry stating it wished to continue discussions on how it and Red Lake could accommodate Wabauskang’s future development needs.
In May 2023, the MNR was advised that Wabauskang had a longstanding interest in the area as a historic fishing, hunting and trading ground, but the next month the Ministry of Indigenous Affairs informed the community Harry’s Corner would not be available to it because of a mining claim and the proposed disposition of the land to Red Lake.
After attempting to phone the Chief of Wabauskang, the ministry sent a letter to both First Nations advising that a decision had been made to proceed with the transfer of Harry’s Corner to the town.
The letter included the following points:
- Harry’s Corner was not identified as an area of interest at the time for the purpose of the Treaty Land Entitlement claim
- The government had no information on historic sites at or near Harry’s Corner
- Under the terms of Treaty No. 3, the province has the power to take up lands, subject to the duty to consult, and that the MNR had made every effort to fulfill its obligation to understand and mitigate impacts to the First Nations
- The MNR wanted to meet to help identify other Crown lands that might suit Wabauskang’s needs
The First Nations objected to the decision and asked for it to be reviewed in Divisional Court.
In a decision released this month, the court dismissed the application, ruling the MNR was not required to obtain the communities’ consent prior to the land transfer, and that it had met its constitutional obligations to consult them.
Citing decisions in other court cases, it said Obtario has the authority to “take up” lands under Treaty No. 3 subject to the duty to consult, and that this duty to consult does not include a right of veto for First Nations.
It further stated the TLE agreement does not give First Nations the right to choose land unilaterally, nor does it provide them with a veto.
The court noted Wabauskang did not officially identify Harry’s Corner as an area of interest until late 2022, and did not formally inform the province of its interest until May 2023.
It also pointed to the fact that when a forest management plan was developed for the area from 2017 to 2019, neither First Nation objected to Harry’s Corner being harvested for its timber, and neither indicated it was of particular interest to them.
“Further, Harry’s Corner did not contain any known values identified by First Nations in any previous consultations or internal Crown due diligence,” the court decision reads.
Value maps created by Indigenous communities identify sites that may include things such as burial, spiritual or cultural sites, and fishing and hunting locations.
The court stated “Perfection is not required” in undertaking the Crown’s duty to consult. “The (MNR) provided notice, engaged directly with the First Nations, provided timely information, considered the claims and concerns, and remained open to addressing those concerns,” it said.
“Although the parties were unsuccessful in reaching an agreement, the consultations were helpful in identifying the (First Nations’) concerns and needs. On July 28, 2024, the ministry sent a letter inviting the applicants to discuss their interest in Crown lands and for the ministry to look for possible lands that may meet their needs.”
The court also observed that Red Lake had advised the First Nations the municipality remained open to more discussions, including about housing on Harry’s Corner for Wabauskang high school students.
Newswatch has reached out to Wabauskang and Lac Seul First Nations’ representatives to ask if they plan to appeal the court’s decision, but has not received a response. – nwonewsatch.com
article website here
My understanding is that this not unusual, when dealing with FNs. Frustrating to no end.
A prime example can be found here