CHARLOTTETOWN, P.E.I. - The province of P.E.I. did not need the consent of the Mi’kmaq to sell Mill River in 2017 or have a duty to consult with First Nations, lawyers for the government argued in court Thursday.
Lynn Murray of Key Murray Law is one of two lawyers representing government in P.E.I. Supreme Court in the ongoing judicial review hearings on government’s sale of Mill River to Don McDougall.
She argued Thursday if the province’s duty to consult with the Mi’kmaq in this land transaction did exist, it was on the low end of the spectrum, and government feels it fulfilled that duty.
“The Mi’kmaq had a different idea of what consultation entailed.”
Related: 'The Crown did not act honourably,' lawyer for P.E.I. Mi’kmaq argues in Mill River case
There were at least 24 pieces of communication between the Mi’kmaq Confederacy and the province between 2012 and 2017 when the sale was finalized, Murray noted.
She also pointed out the first of this correspondence from government to the confederacy referenced “consultation”, and that further references were repeated in a series of emails and letters over the ensuing four years.
She then took the court through each and every one of these letters and emails, which have been filed as part of affidavits by Don MacKenzie, executive director of the Mi’kmaq Confederacy, and Neil Stewart, deputy minister of finance. She did this to establish the timeline of the province’s dealings with the confederacy and the Mi’kmaq chiefs on Mill River over four years.
The correspondence is mainly between MacKenzie and various officials within government wherein government offers general information about the proposal it was entertaining to sell Mill River to a private developer, while MacKenzie continually presses for more details and meaningful consultation with the Mi’kmaq.
Murray highlighted that in many of the emails from Mackenzie, he states repeatedly “the consent of the Mi’kmaq must be obtained.”
Related: P.E.I. Mi’kmaq chiefs say they weren’t properly consulted in Mill River sale
Murray argues this was equating their rights to a veto over the deal, which the Supreme Court of Canada has ruled is not a right in Aboriginal and treaty cases, even if a duty to consult has been clearly proven.
“The law is clear. They do not have a veto. They are not required to give their consent,” Murray said.
She pointed to a letter dated April 24, 2015, by MacKenzie to Chris Jones, a director with the tourism department of the day. In it, he states the province “has an obligation to engage in meaningful consultation, to accommodate, and to obtain the consent of the Mi’kmaq before any transfer is made.”
When government moved ahead with negotiations to sell the land to McDougall, MacKenzie again wrote to Jones in November 2016, advising that the Mi’kmaq “firmly object to the proposal.”
“The law is clear that there can be no disposal of crown land without the consent of the Mi’kmaq,” MacKenzie wrote Nov. 16, 2016.
Government rejects this assertion.
“It’s the province’s position that there was a misunderstanding as to what the law was,” Murray told the court Thursday.
Thomas Isaac, who is also presenting arguments on behalf of government, outlined detailed examples of case law that have determined that First Nations only have the right to consent on a sale or activity involving Crown land if Aboriginal title has been proven. The P.E.I. Mi’kmaq have asserted title over all of P.E.I. but have not yet proven it, Isaac said. Doing so is a major undertaking.
“It’s a big deal to prove Aboriginal title – and it should be,” Isaac said.
He further argued the P.E.I. government did not have a duty to consult or to negotiate, despite the fact the Mi’Kmaq were demanding this.
The Supreme Court of Canada has ruled the duty to consult only exists if the proposed Crown action – selling Mill River – would have a proven adverse effect on Aboriginal or treaty rights.
Isaac noted the confederacy had pitched an alternative proposal for Mill River in 2016, asking the province to give the property instead to the Mi’kmaq of P.E.I., who would then immediately enter into a long-term agreement of 50 to 75 years with McDougall.
This suggests the proposed activity on the land would not have an adverse impact on the Mi’kmaq, Isaac argued.
He plans to argue today that even if the duty to consult did exist in this deal, government met that duty.
