Mi'kmaq had no 'veto' over Mill River sale, government lawyer says
Province points to dozens of letters, emails, saying duty to consult was fulfilled
A lawyer representing the P.E.I. government pointed to a string of 24 emails and letters over a period of 4½ years, suggesting those communications constitute meaningful consultation between the province and the P.E.I. Mi'kmaq Confederacy over the sale of Crown land.
The confederacy requested a judicial review of the province's sale of the Mill River Resort and associated properties, saying the province did not fulfil its duty to consult with First Nations over the sale.
"It's the province's position that it fulfilled its obligations," lawyer Lynn Murray told Justice Gordon Campbell, presenting the government's case on the third day of the review.
No duty to consult, province says
In arguments and court filings, the P.E.I. government's position is it did not have a duty to consult with Mi'kmaq over the sale because the Mi'kmaq Confederacy has not provided evidence to support its title claim to "all of the lands and waters of what is now known as the province of Prince Edward Island."
Murray told the court that if there was a duty for the province to consult with Mi'kmaq over the sale "it was at the low end of the spectrum."
Provinces have a duty to consult with Indigenous peoples when there is a claim that an Indigenous or treaty right will be breached.
But P.E.I. says the confederacy failed, despite repeated requests from government, to provide specific information on how the sale of the resort and golf course to a private developer would negatively impact Mi'kmaq treaty rights in the province.
Murray said the confederacy was notified at least as far back as Dec. 3, 2014, of the province's plan to divest itself of the properties in question.
"The province [does] value its relationship with the Mi'kmaq," Murray told the court. "It's regrettable that we're here. Consultation doesn't mean that you necessarily reach agreement."
Consent not required, lawyer argues
Murray also noted that in its correspondence with the province, the Mi'kmaq Confederacy repeatedly asserted that its consent was required for the sale to go ahead. Murray argued that was never the case.
"They do not have a veto," she told the court. "They are not required to give their consent in this situation."
In some of the letters and emails Murray referred to as part of the consultation process itself, the executive director of the Mi'kmaq Confederacy, Don MacKenzie, was asking when and how that process would take place, or asserting that no meaningful consultation had yet taken place.
"This is not meaningful consultation," he wrote to the province in an email dated Feb. 5, 2015. "The approach taken by the Crown to date has actually shown a level of disrespect toward the P.E.I. Mi'kmaq and represents an unacceptable double standard."
In its request for a judicial review, the confederacy has asked the court to quash the orders-in-council passed by the P.E.I. cabinet in January 2017, authorizing the sale of the resort and golf course to private businessman Don McDougall.
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