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EDITORIAL: It’s only round one

Thomas Isaac, foreground, and Lynn Murray, who are shown with two unidentified court observers, presented their closing arguments Jan. 19 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. 

The Guardian / Teresa Wright
Thomas Isaac, foreground, and Lynn Murray, who are shown with two unidentified court observers, presented their closing arguments Jan. 19 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. The Guardian / Teresa Wright - The Guardian

Mill River judicial review likely headed to court appeal no matter who wins this round

As lawyers for three parties left a Charlottetown courtroom January 19 at the conclusion of the Mill River judicial hearing, there was a general consensus they would likely see each other back in court to argue an appeal – sooner than later.

If Supreme Court Justice Gordon Campbell upholds the province’s sale of the 325-acre resort and golf course to entrepreneur Don McDougall, the Mi’kmaq Confederacy of P.E.I. is sure to appeal. It would have a strong case, based on decisions in other jurisdictions and its historical claims in this province.

The province claims it fulfilled its constitutional duties to consult with the Confederacy. But evidence presented during the hearing suggests that consultation was one-sided, consisting of letters and emails from the Confederacy seeking information, while the province was content to stall. It didn’t appear the government acted in good faith, when it only told the Confederacy about the sale after it was completed.

If Justice Campbell nullifies the transaction, the province is sure to appeal. The case is likely precedent-setting and neither side would be willing to back down.

Caught in the middle is Mr. McDougall, who is keeping his fingers crossed as he continues with major renovations and construction at the resort. He could see five years of planning, dreams and investment in jeopardy. Someone will have to compensate him for his time and money as an innocent third party.

If the ruling goes against the province, Mr. McDougall has made it clear, if he doesn't have clear title and ownership, he’s not interested in continuing his association with the Mill River property. It would bring the multi-million dollar redevelopment to a crashing halt.

There are other possibilities that might save the day, even if the province loses in court. As Mr. McDougall’s lawyer argued, rather than nullify the sale, the court could order the province to negotiate a settlement with the Confederacy or award damages to satisfy their claims.

It could involve a cash settlement, an apology and a promise to act in good faith in any similar future sales. The Confederacy could then relinquish claims to the Mill River property, and with his deed intact, Mr. McDougall could proceed.

The judge could order the sale to stand, but rule the government didn’t fully meet its obligations and compel province and Confederacy to hammer out a settlement, subject to court approval.

What must happen, no matter who wins in court, is that the Mill River redevelopment continues and that the resort and golf course remain open. The tourist attraction and golf mecca are too important - for Island tourism, resort employees, contractors, suppliers and the social and economic interests of all residents of West Prince – to fail. It is incumbent upon province and Confederacy to ensure this happens, no matter the outcome in court.

This brouhaha ensures that attempts to sell other Crown lands on P.E.I. are effectively stalled. Who is going to make a pitch for Brudenell, Crowbush or the experimental farm if court action and legal wrangling surely await?

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