In December 2025, a coalition of First Nations communities from the Breathing Lands travelled to Toronto for a court hearing. The name “Breathing Lands” is used to describe the vast peatlands across Treaty No. 9 territory in Northern Ontario, which are globally significant in storing and absorbing carbon from the atmosphere.
Recap of the Breathing Lands legal challenge
In 2023, a coalition of several Nations launched a legal challenge seeking co-jurisdiction in Treaty No. 9 territory, which would ultimately give them greater decision-making power over resource extraction projects on their lands.
However, the Ontario government is asking the courts to dismiss the legal challenge, stating that it cannot succeed under Canadian law.
What happened in court?
In December, Treaty No. 9 First Nations (Plaintiff Nations), alongside their legal counsel, expressed that the courts can’t get this case wrong and that it must be dealt with carefully and considerably because of its precedent-setting nature at such a pivotal time in history.
“The land is their identity. You take the land away, you take them away. Real people, societies, and territories are threatened with extinction and will greatly be affected by the outcome of this case,” says Kate Kempton, lead lawyer representing the Plaintiff Nations.
Ontario believes this case should be thrown out because the scope of the remedies — mostly on shared jurisdiction between Ontario, Canada, and all First Nations in Treaty No. 9 territory — is too broad and incompatible with Crown sovereignty. They stated this argument several times in front of not just the judge, but over one hundred people witnessing the power of Indigenous-led litigation in action.
The Crown lawyers representing Ontario pointed to case law where challenges to Crown sovereignty were thrown out. Ontario, alongside Canada, in their written arguments, provided examples of other Aboriginal rights open to the Treaty No. 9 Nations that they could seek instead of jurisdiction, such as self-government. Ontario also argued the remedies sought by the Plaintiff Nations would frustrate the division of powers between Parliament and its legislators, making it impossible to get Indigenous free, prior, and informed consent for every resource project, permit, and authorization in Treaty No. 9 territory.
The arguments put forward by Ontario did not sit well in the courtroom that day. We heard Ontario say the case, as presently written, had no reasonable cause of action, no chance of success, and the results would tie the government’s hands, which is “simply not going to happen.”
The Plaintiff Nations and their legal team reiterated to Ontario that they don’t challenge Crown sovereignty in this legal case. Instead, they are arguing specifically over Indigenous jurisdiction, which is decision-making governance authority over the lands, waters, and resources within it.
What would a win achieve?
One of the key points of the Plaintiff Nations’ argument is that Indigenous jurisdiction is a right under Treaty No. 9. This declaration by the Superior Court of Ontario, if brought to trial, would be newly recognized in Canadian law. It is argued to be compatible with Crown sovereignty in a similar way that Treaty rights like hunting and fishing are. It would be subject to a test for all Aboriginal rights as laid out in R. v. Sparrow.
The legal arguments brought forward by the Plaintiff Nations, especially as they relate to free, prior, and informed consent, are admittedly some of the most important arguments for the Canadian courts to decide in the next 10 to 20 years. Indigenous co-jurisdiction could see proper limits to Crown authorization of resource projects that affect the way of life of Indigenous Peoples. The strategic Treaty rights case could also strengthen the protection of the Breathing Lands — one of the largest intact boreal forests in the world, which plays a significant role as a global carbon storehouse. There could be new avenues, processes, and types of authorizations that First Nations actually get to decide on instead of solely being consulted on by the Crown. There could be sincere protections put in place by First Nations to not just two-thirds of all of Ontario’s land mass, but to potentially all of Canada, depending on this decision.
That’s why the courts can’t get this wrong. It’s a massive precedent being sought by the Plaintiff Nations with so much at stake.
What’s next for the legal challenge?
This motion-to-strike did bring up some clarifying points that both parties weren’t aligned on, so the Plaintiff Nations are rewriting the statement of claim in hopes that Ontario will accept it. They submitted it on January 9th. Ontario will be responding to the new statement of claim by the end of January, which will depict what the judge must decide for the future of the legal case.
For the RAVEN staff that attended the hearing alongside Chiefs, community members, leaders of environmental non-profits, and key supporters, we have hope. The judge was receptive and engaged in the arguments, and people prayed at the sacred fire put on by the Toronto Native Cultural Centre around the corner for the judge to connect his mind to his heart. It’s with actions like the prayers at the sacred fire, the incredible leadership of the Plaintiff Nations, and the insurmountable support generating behind this case that we have hope.
