On the fourth and final day of submissions, lawyer David Hooley characterized his client, private developer Don McDougall, as being in the "crossfire" of a battle between the province and the Mi'kmaq Confederacy of P.E.I.
P.E.I. Supreme Court Justice Gordon Campbell heard final submissions Friday from lawyers representing the P.E.I. government, the Mi'kmaq Confederacy and McDougall in a case regarding the province's duty to consult First Nations over the sale of Crown land.
Hooley said his client had no position on whether government was obliged to consult with the confederacy over the sale, but was interested only in the remedies the court might seek to provide if it sides with the Mi'kmaq Confederacy.
He said some of the remedies sought by the confederacy would bring the $7-million project to redevelop the resort "to a grinding halt."
The Mi'kmaq Confederacy is asking the court to declare as invalid two orders from the P.E.I. cabinet authorizing the sale of the parcels of land in question. Alternately, the confederacy is asking that those orders are "suspended or postponed until the province has adequately consulted and/or accommodated the Mi'kmaq of P.E.I."
Hooley argued those measures would have the effect of "clouding or nullifying" McDougall's deed to the property, which "would cause serious harm to McDougall, his employees, contractors, suppliers and the socio-economic interest of all the residents of West Prince" by leading to the possible closure of the resort.
If the court finds in favour of the confederacy, Hooley said it could award damages in the form of money, or private or public land to be transferred from the province to the Mi'kmaq, as an appropriate remedy.
He asked the court to make a determination as to whether the relief being claimed by the confederacy to declare the sale as invalid "may or may not be appropriate."
No duty to consult, province says
The Mi'kmaq Confederacy applied for a judicial review of two cabinet decisions from January 2017, which authorized the sale of the Mill River Resort, golf course and related properties to McDougall.
The confederacy argues the government did not fulfil its duty to consult with the province's two First Nations over the sale.
The province has argued it had no duty to consult, but if it did, that duty was on "the low end of the spectrum" and government met that threshold through a series of 24 letters and emails between the two parties over a period of four-and-a-half years.
The Supreme Court of Canada has determined Ottawa and the provinces have a duty to consult with First Nations, and in some cases provide accommodation, with regard to government decisions that might adversely affect Indigenous or treaty rights.
Duty to consult
This is the first time duty to consult has been challenged in P.E.I. court.
In summing up her arguments, one of the lawyers representing government, Lynn Murray, said Friday this is a case where both of the two main parties believe the other has a mistaken understanding of the law.
Based on the letters and emails submitted as part of the court record, she said "it appears the Mi'kmaq thought they could jump over consultations and proceed immediately to negotiations" over accommodations to be provided to the M'ikmaq over the sale of Crown land.
Lawyers for the Mi'kmaq Confederacy said written requests from the confederacy that government provide an opportunity for it to make submissions regarding the properties in question were ignored.
"The Crown did not act honourably" in the transfer of the property in question to a third party, argued the confederacy's lawyer David Rosenberg, "and that left the process of reconciliation in need of repair."
The government has argued if there is a finding it did not meet its duty to consult, the remedy ordered by the court should be that more consultation take place. The province says any changes or conditions placed on the sale could affect the operation of the resort. The government also says McDougall is an innocent third party and should be protected from any negative impact.
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