Judge dismisses Aboriginal bid to block sale of P.E.I. golf course

CHARLOTTETOWN — The Mi’kmaq have lost a court bid to block the sale of a Crown-owned golf course on Prince Edward Island, but fears over the wider consequences for Aboriginal land title could prompt an appeal.

The Mi’kmaq, who have claimed Aboriginal title to all of P.E.I., had argued the provincial government failed its duty to consult with First Nations on the Jan. 10, 2017, decision to sell the land to businessman Don McDougall.

But Justice Gordon Campbell of the province’s Supreme Court ruled this week that the government had sufficiently consulted on the transfer of the 130 hectares of the Mill River golf course.

He said the potential for an infringement of the rights of the Mi’kmaq is minor on lands that have been used as a golf course and resort for over three decades, with about 15,000 rounds being played annually.

Campbell also observed that the Indigenous population had itself offered to continue operating the land, about 115 kilometres west of Charlottetown, as a golf centre for the next 75 years.

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It’s a view that is frustrating for the P.E.I. Mi’kmaq, who have long asserted their ancient presence on the land they call Epekwitk gives them a unique claim on the territory.

“My clients are very disappointed and are considering whether or not to appeal the decision,” said David Rosenberg, the lawyer for the Mi’kmaq, in an interview.

In his decision, Campbell said with little chance of the lands being used for Indigenous hunting, fishing or other resource extraction, the amount of consultation required was at the “low end of the … spectrum” established by the 2004 Supreme Court of Canada Haida decision.

“When I examine the province’s consultation efforts as a whole, I am satisfied that they met, and exceeded, their duty to engage in meaningful consultations and to act in good faith toward the Aboriginal people and interests which might be impacted by their contemplated land transfer,” the judge wrote.

“The government made reasonable efforts to inform and consult. Given the absence of evidence of any new adverse impacts, they far exceeded the minimum degree of consultation required.”

The decision also says the Mi’kmaq had incorrectly claimed it was the province’s duty to research and uncover past traditional uses by the Mi’kmaq, but in fact some case law suggests the onus falls on the shoulders of the Aboriginal claimants.

Regarding the band’s claim to Aboriginal title of P.E.I., the judge said “the evidence supporting any claim, is, to this point, very limited,” adding that even a nomadic people must show evidence of occupation as “viewed through the appropriate culturally sensitive lens.”

McDougall bought the Mill River golf course and surrounding lands for $500,000, while the province committed to spending $6 million improving the course.

The province also committed another $1.6 million for operational losses in the first six years and it bought the resort on the property for $1.8 million, which it then gave to McDougall.

In his decision, Campbell found the province’s decision last year to sell could have been more courteous, particularly as it came just hours after a meeting between the province and Aboriginal leaders.

“While being notified that the province had made a decision to move forward with the transfer is not strictly part of the consultation process, it clearly would have been more a respectful gesture and less offensive to the Mi’kmaq leadership if they had been informed,” wrote Campbell.

“The reconciliation process is best served by courteous and thoughtful interactions at all times.”

Rosenberg said if the case ends at this stage, it will remain as one higher court judge’s view on whether adequate consultation was carried out by the Crown.

However, Rosenberg said if his clients decide to appeal, the grounds of that appeal may be precedent-setting because Indigenous groups could argue the government’s decision to transfer Crown land to a private owner inherently harms Aboriginal title claims.

He says Campbell’s decision appeared to rely on the view that the transfer of Crown land from the province to a private landholder had limited impact on the wider claim of Aboriginal title by the Mi’kmaq.

“Nobody has ever determined whether in P.E.I, or probably all of Canada, the bare transfer of ownership of land from the Crown to a private party has an adverse impact on Aboriginal title,” said Rosenberg.

“That’s a significant and far reaching legal issue that could be determined by a court of appeal … that could have a significant impact on Aboriginal rights and title.”

Rosenberg says there’s an argument to be made on this point because once the Crown loses control of land to private interests, it may be harder for Aboriginal groups to seek to use the land or gain compensation for their Aboriginal title to the land. 

The province issued a news release indicating it will continue to work with Aboriginal groups, and will take note of the judge’s comments on the province’s “legal requirements and responsibilities pertaining to land transactions.”

“The province will continue to work together in a spirit of partnership and reconciliation with the Mi’kmaq people and leadership of Prince Edward Island,” said Premier Wade MacLauchlan, minister responsible for Aboriginal Affairs.

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— Story by Michael Tutton in Halifax.

The Canadian Press