CHARLOTTETOWN, P.E.I. - The sale of Mill River to a private developer in 2017 happened with no meaningful consultation and has “left the process of reconciliation in need of repair,” the lawyer for the Mi’kmaq First Nations argued Wednesday in P.E.I. Supreme Court.
Wednesday marked day two of hearings dealing with a judicial review application brought by P.E.I.’s two Mi’kmaq First Nations on the province’s sale of Mill River to Toronto Blue Jays founder Don McDougall in January 2017.
Neil Stewart, deputy minister of finance, was again on the witness stand. He was asked by David Rosenberg, legal counsel for the Mi’kmaq, to review a number of letters sent by the Mi’kmaq Confederacy of P.E.I. and by Chief Brian Francis and Chief Matilda Ramjattan through 2015 and 2016 asking for more information and consultation on the proposed sale of the Mill River golf course.
The letters show the Mi’kmaq were informed of the province’s intention to sell the property first in December 2014 and then again in October 2016.
The Mi’kmaq Confederacy repeatedly requested whether a statutory decision maker would be established to whom they could make submissions regarding their assertion of Aboriginal title on the property.
The correspondence also shows that after former premier Robert Ghiz resigned in February 2015, the Mi’kmaq Confederacy was told the Aboriginal affairs secretariat was in a transitional period and “won’t be in a position to offer a considered response until internal matters have settled.”
Rosenberg asked Stewart if government ever followed up with the Mi’kmaq on this request for a statutory decision maker. Stewart said he was not aware of any formal response.
Rosenberg then read from a scathing letter written by the Island’s two First Nation’s chiefs to Premier Wade MacLauchlan on Jan. 18, 2017 – a week after the public announcement of the sale of 325-acres Mill River property and resort to McDougall.
In it, the chiefs express their deep sense of betrayal at government moving ahead with this land transfer despite their objections and requests for meaningful consultation.
“Consultation does not mean that the Crown advises of its intention, receives objections from the First Nations, and them moves ahead regardless. That is not meaningful consultation,” the chiefs wrote to MacLauchlan Jan .18, 2017.
“If it is the position of the provincial Crown that moving ahead in secret against our repeated objections and without any accommodation whatsoever somehow fulfils the Crown’s constitutional duty to consult, then clearly the Crown has no real understanding of its legal and constitutional obligations.”
“Consultation does not mean that the Crown advises of its intention, receives objections from the First Nations, and them moves ahead regardless. That is not meaningful consultation. If it is the position of the provincial Crown that moving ahead in secret against our repeated objections and without any accommodation whatsoever somehow fulfils the Crown’s constitutional duty to consult, then clearly the Crown has no real understanding of its legal and constitutional obligations.”
-Letter from Mi'kmaq chiefs to Premier Wade MacLauchlan
Rosenberg told Supreme Court Justice Gordon Campbell, who is presiding over the proceedings, that he is not being asked to decide whether Mi’kmaq Aboriginal land title exists or whether the province infringed on that title. He must decide whether the province fulfilled its obligations to consult and accommodate the P.E.I. Mi’kmaq on the sale of this land.
“At the heart, this case is about reconciliation on the part of the Crown and how it is to treat Aboriginal land claims,” Rosenberg told the court Wednesday.
“At the end of the day, the Crown did not act honourably,” he said, adding that this has “left the process of reconciliation in need of repair.”
Rosenberg spent several hours in the afternoon going through decisions rendered in other court proceedings on Aboriginal land title cases that support his arguments, notably the 2014 Supreme Court of Canada Tsilhqot'in decision, which set out that, in cases involving Aboriginal title, governments must obtain the approval of the Indigenous title-holders prior to moving forward with approving activity on or transfering control of subject land.
Rosenberg noted Aboriginal title has never been ceded in the Maritime provinces and also that this case is unique due to the fact there is no other documented First Nations that have claimed land title in P.E.I. Similar disputes in other jurisdictions have seen overlap between multiple First Nations claiming title.
This case marks the first to come to the courts of P.E.I. related to land title, Rosenberg stated.
The Mi’kmaq are seeking a declaration the province failed in its duty to consult and accommodate the Mi’kmaq of Prince Edward Island on the sale and that the transfer of Crown land to McDougall be declared invalid.
The government will present its case in court on today.