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UPDATE: Lawyers in Mi’kmaq Mill River land dispute present closing arguments

Thomas Isaac, foreground, and Lynn Murray, who are shown with two unidentified court observers, presented their closing arguments Friday in the judicial review hearings of the Mi’kmaq Mill River land dispute. Government argues it had no duty to consult with the Mi’kmaq on the sale of Mill River to Don McDougall in 2017.
Thomas Isaac, foreground, and Lynn Murray, who are shown with two unidentified court observers, presented their closing arguments Friday in the judicial review hearings of the Mi’kmaq Mill River land dispute. Government argues it had no duty to consult with the Mi’kmaq on the sale of Mill River to Don McDougall in 2017. - Teresa Wright

CHARLOTTETOWN, P.E.I. - If the province’s sale of Mill River to Don McDougall is nullified by the P.E.I. Supreme Court, the Mill River resort could close, McDougall’s lawyer argued in court Friday.

David Hooley presented McDougall’s arguments Friday during the final day of judicial hearings on the province’s sale of Mill River in 2017.

McDougall takes no position on whether the province fulfilled its constitutional duties to the P.E.I. Mi’kmaq on the Mill River deal.

He is only concerned about remedies that could be awarded.

If the Mi’kmaq win this case, Hooley asked Supreme Court Justice Gordon Campbell to award damages rather than quash the cabinet orders-in-council that authorized the transfer of Mill River to McDougall, which is what the Mi’kmaq are seeking.

Nullifying McDougall’s title to the property would “cause serious harm to McDougall, his employees, contractors, suppliers and the socio-economic interest of all the residents of West Prince… (and) would set off a chain of events (that would) result in the likely closure of the Mill River resort,” Hooley told the court.

“This is a legacy project,” Hooley said of McDougall’s interest in the property. “This is not something he did to make a quick buck.”

Related: Mi’kmaq chiefs say they weren’t properly consulted in Mill River sale

He noted that even the Mi’kmaq’s assertion of title to the land has caused McDougall some difficulty in his business dealings involving the property. He has had to change banks because the social risk committee of his primary bank may not have approved financing.

If the court finds the province’s duties were not fulfilled and if more consultation is required, “there must be a damages undertaking,” Hooley argued, noting damages could be financial or could be the granting of alternate land to the Mi’kmaq.

Related: P.E.I. government lawyers present arguments in Mi’kmaq Mill River land dispute

Friday marked the final of four days of arguments on an application for judicial review brought forward by the Mi’kmaq of Prince Edward Island on the transfer of 325 acres of Crown land in Mill River last year.

The Mi’Kmaq are seeking a declaration the province failed in its duty to consult and accommodate the Mi’kmaq on this deal and that the transfer of Crown land to McDougall be declared invalid.

The province argues it did not have a duty to consult with Mi’kmaq, saying the Aboriginal title assertion on these lands was “speculative”, and if there was a duty to consult, it was on the low end of the spectrum.

Related: 'The Crown did not act honourably,' lawyer for P.E.I. Mi’kmaq argues in Mill River case

Lawyers for government concluded their arguments Friday, detailing the reasons and case law to support their arguments.

Lawyer Thomas Isaac pointed to Supreme Court of Canada decisions that have determined only low level consultation is necessary if the strength of the Aboriginal land-title is weak, if potential infringement is low or if the risk of damage that cannot be settled through compensation is low.

Isaac argues this deal falls into this category, as the Mi’kmaq failed to provide any evidence the transfer of lands would have a significant impact on their First Nation.

He also argued that consultation is a two-way street.

He pointed to a statement made by Don MacKenzie, executive director of the Mi’kmaq Confederacy in a letter to the province in April 2015 in which he communicated the Confederacy’s objections to the sale of Mill River and that the responsibility for consultation was government’s alone.

Case law says this is not true, Isaac argued.

“It takes two parties to dance when it comes to consultation,” Isaac told the court.

“There was a reciprocal obligation on the applicants (to) inform the province of the strength of their assertion to Aboriginal title and impact on the transfer of lands on their Aboriginal interests.”

The province is asking for the application for judicial review to be dismissed.

David Rosenberg, legal counsel for the Mi’kmaq, said the case from their perspective is simple: “They’ve been here for 10,000 years, and it’s their land… the Crown is selling their land to someone else.”

Justice Campbell is now left to consider the arguments and render a decision in due course.

 

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