I believe the province dropped the ball when neither the MNDM or the MNR sought party status at the hearing to represent Ontario and the public interest. I guess the question is whether the Commissioner errored when he did not consider a public interest regardless of the lack of testimony

Comments from the Tribunal's Decsion:

The tribunal is troubled by the fact that no provincial representative came forward to testify as to the provincial or public interest. A letter wherein the province expresses an interest in the project is not a satisfactory basis for concluding that the road has a public component. It is one thing to hear evidence that a historic chromite discovery has occurred in the James Bay Lowlands; the tribunal is unable to extrapolate from that information, without evidence from those qualified to speak to the public interest, whether an application by one corporate entity, in preference to another, should be permitted to proceed.

In each of the past decisions there was some aspect of public interest that the Commissioner could identify and find conclusive — whether it was a municipal park or a ski operation that allowed the public free access. Such is not the case here. An alternative scenario presents itself and it may be the simpler one. This is not a case where there is a public interest element for the tribunal to consider. What is before this tribunal is no more than a simple corporate fight and, as between those two corporations, the law is clear; the application must fail.