To coin some oft-used but applicable phrases, the timing was impeccable and the coincidences were more than slightly uncanny.
Thursday afternoon, the Mi’kmaq Confederacy of P.E.I. announced it is appealing a P.E.I. court’s dismissal of the Mill River sale review – casting doubt on the future of the major tourist destination in West Prince.
The same day, a federal B.C. Court of Appeal decision overturned permits for the Trans Mountain expansion project. It throws into doubt a major energy deal to get Alberta oil to a B.C. port. The decision was described by Ottawa as a major blow to the national interest.
In each case, the key arguments are about a lack of meaningful consultation and dialogue with First Nations peoples.
It was more than ironic that a day earlier, federal Crown-Indigenous Relations Minister Carolyn Bennett visited P.E.I. to discuss a new rights framework – expected this fall - to solve legal battles between Ottawa and Indigenous peoples. Minister Bennett met with Lennox Island Chief Matilda Ramjattan and Abegweit Chief Brian Francis as part of her cross-Canada tour.
The jarring news on each coast suggest such a framework is much too late; it’s past time to put talk into action. The day after Minister Bennett’s visit, the chiefs gave the go-ahead to proceed with the widely-expected Mill River appeal.
At issue on each coast is the degree of consultation – when is it enough or not enough? In the pipeline case, the verdict surprised many analysts who thought Trans Mountain had gone through extensive consultations. But it wasn’t enough to satisfy the court which ruled the federal government didn’t carry out its duty to consult with affected First Nations in meaningful, two-way dialogue.
The B.C. decision should send alarm bells ringing across P.E.I. If extensive consultations are ruled insufficient, then the P.E.I. Confederacy must feel its case looks much stronger today. The appeal seeks to review the province’s sale of the Mill River Resort to businessman Don McDougall, citing a lack of consultations in the sale of Crown land. The Confederacy believes Justice Gordon Campbell erred when he ruled the province’s consultations “met and exceeded the duty to engage in meaningful consultations.”
While the chiefs pledge to continue working with the provincial government and remain committed to negotiations as the best path to recognize treaty rights, they are drawing a rigid line on the Mill River deal.
The province should reconsider its options, with the increasing likelihood the Confederacy will win on appeal. For the sake of the West Prince economy, Island tourism and Mr. McDougall’s investments, the court may approve the Mill River deal, but order compensation for P.E.I. Mi’kmaq and issue a stern warning to the province.
But who knows what the court might decide? The province is well advised to admit it erred and seek an out-of-court settlement with the Confederacy to bring this case to a speedy conclusion. And then sign an agreement that any future sale or disposal of Crown land must come with the involvement and agreement of P.E.I.’s First Nations.