Mi'kmaq appeal on Mill River land sale dismissed in P.E.I. court

The Mi'kmaq of P.E.I. has lost its appeal of the provincial government's sale of the Mill River resort to a private businessman. 

The P.E.I. Court of Appeal dismissed both Mi'kmaq requests, to declare the province failed to fulfil its duty to consult, and to void the province's order-in-council that transferred the land to Don McDougall.

The province sold the land in western P.E.I., which included the Mill River resort, golf course and related properties in 2017 to McDougall.

The Mi'kmaq challenged the sale in P.E.I. Supreme Court, claiming the province had not met its duty to consult with First Nations on the sale of Crown land in January 2018.

However, in June of that year, the Supreme Court dismissed the challenge stating government met, and exceeded, its duty to consult.

I find that the province fulfilled its duty to consult. — Chief Justice David H. Jenkins

The Mi'kmaq of P.E.I., which includes the Lennox Island and Abegweit First Nations, appealed the decision in August of 2018 and went before the P.E.I. Court of Appeal in May of this year.

On Wednesday the appeal court agreed with the dismissal and decided the province met the duty to consult with the Mi'kmaq.

"I find that the province fulfilled its duty to consult," P.E.I. Chief Justice David H. Jenkins wrote.

Duty to consult not triggered

Duty to consult was not triggered because the sale of Mill River had no adverse effect on Aboriginal claims.

"There was no Mi'kmaq use or interest in the property, either historic or present day, to be protected," Jenkins wrote.

John Robertson/CBC

The Mi'kmaq asserted any transfer of Crown land to the private sector has an adverse effect on the P.E.I. Mi'kmaq.

However, even if the duty to consult was triggered, the province still would have met its obligation to consult, wrote Jenkins.

"If duty to consult was triggered, the province satisfied its duty to consult because the consultation it initiated and carried out was appropriately focused and substantial," Jenkins wrote.

In the decision, Jenkins wrote that because the Mi'kmaq had previously notified government of its intent to bring an Aboriginal title claim for all of P.E.I., and the Mill River property was Crown land, government began consultations with the Mi'kmaq of P.E.I.

Consultation occurred between July 2012 and January 2017 and the provincial government decided the consultation was sufficient to meet and exceed its duty, the court decision said.

Mi'kmaq provided 'little' evidence

In 2005, the Supreme Court of Canada ruled that "the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or treaty rights."

"Proving rights or title may take time, sometimes decades," Jenkins wrote.

The Mi'kmaq provided little evidence or information to show how its asserted title claim would be eventually proven, he added.

"I come to the conclusion that the strength of the case supporting Aboriginal title was weak," Jenkins wrote.

The province asked the Mi'kmaq for any information they had on archeological sites.

The Mi'kmaq did not provide "very much" additional information to support their claim for Aboriginal title, Jenkins wrote.

The court also ruled the P.E.I. Mi'kmaq will pay a portion of the court costs for both government and McDougall.

P.E.I. Premier Dennis King said he hasn't had a chance to read the full decision, but has been briefed and it was a case the current government inherited from the previous Liberal government.

"In our short time in government we have developed a really strong working relationship with the First Nation governments in Lennox Island and Abegweit, with the Mi'kmaq Confederacy and the Native Council of Prince Edward Island," he said.

King said he understands the frustrations of the Mi'kmaq of P.E.I. surrounding the decision and hopes the relationship with government isn't "dampened."

"I have a good strong working relationship with both chiefs. I have a good strong relationship with the senior managers at the Mi'kmaq Confederacy, and I look to build upon that," he said.

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