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P.E.I. court dismisses Mill River appeal; says strength of case supporting Aboriginal title was 'weak'

Mill River Resort
Mill River Resort - SaltWire file photo
CHARLOTTETOWN, P.E.I. —

The P.E.I. government’s sale of its Mill River golf course has cleared another legal hurdle after the province’s court of appeal found it didn’t breach a duty to consult Island Mi’kmaq. 

In a unanimous 52-page decision, released on Wednesday, the court of appeal found the government didn’t have a duty to consult P.E.I. Mi’kmaq over the deal, but if it had, consultations it started and carried out exceeded what is required.

The appeal dealt with a P.E.I. Supreme Court decision on a request for a judicial review of the sale of the government’s Mill River property to businessman Don McDougall in 2017.

That sale saw McDougall buy 324 acres of Crown land as part of a 20-year agreement.

McDougall agreed to buy the Mill River golf course and surrounding property for $500,000 with the province committing $6 million for capital improvements over 12 years.

The government also committed $1.6 million to cover operational losses in the first six years of the agreement, and it bought the resort on the property, which it then gave to McDougall.

In response to the deal, the Mi’kmaq of P.E.I., former Chief Matilda Ramjattan, on behalf of the Lennox Island First Nation, and former Chief Brian Francis, on behalf of the Abegweit First Nation, sought a judicial review.

P.E.I. Supreme Court Justice Gordon Campbell dismissed the judicial review in June, saying the government made reasonable efforts to inform and consult.

That decision was appealed.

Duty to consult not triggered

Writing for the court of appeal, Chief Justice David Jenkins said a review of the information that was available to the province when it made its decision to sell the property shows that the duty to consult wasn’t triggered.

Chief Justice David Jenkins.
Chief Justice David Jenkins.

There was no information or evidence produced to show a potential adverse effect on an Aboriginal claim to the land or right, Jenkins wrote.

Jenkins wrote that consultation is a two-way street and the total of the information and evidence the Mi’kmaq gave to the province in support of a title claim was “scant” and that claim, as presented, was tenuous.

“I come to the conclusion that the strength of the case supporting Aboriginal title was weak.”

Jenkins wrote that the province did conduct substantial consultations with the Mi’kmaq in good faith. 

If the duty to consult was triggered, Jenkins wrote, then the province clearly satisfied its duty.

In the appeal decision, Jenkins wrote that the Mi’kmaq provided little information to the government about any historic connection with the Mill River property and didn’t respond substantively to requests about how transferring land ownership would affect the rights and interests they claimed.

He also wrote that consultation doesn’t give veto power over what can be done with Crown land pending final proof of an Aboriginal title claim.

“The Mi’kmaq overstated their situation,” he wrote.

In response to the court decision, Premier Dennis King said the matter was something his government inherited and he respects the decision.

King said his focus has always been on moving forward together, and his government has developed a strong working relationship with the First Nations governments in P.E.I.

“All I can focus on is the future. My style will continue to be that I want to work with a broad group,” King said.

“I want to find consensus to move forward on projects and I think there’s a tremendous opportunity within our First Nations communities to develop these projects collaboratively and together.”

Twitter.com/ryanrross


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