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ABORIGINAL LANDS - Crown title - Consultation and accommodation

Monday, January 06, 2020 @ 9:00 AM  

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Appeal by the First Nation from a decision dismissing its application for judicial review of the Province’s decision to sell Crown land comprising a golf course and resort. Since the appellant had previously given notice to the Province that it intended to bring a claim for Aboriginal title to all of Prince Edward Island, the Province initiated consultation. Consultation occurred between 2012 and 2017 when the Province decided the consultation was exhausted and was sufficient to meet its duty to consult. It approved the conveyance of the property without making any accommodation. The appellant argued the consultation that occurred was inadequate. It objected to the transfer of the property and challenged the validity of the Orders-in-Council that approved conveyance of the property. The reviewing judge found the scope and content of the duty was at the low end of the Haida spectrum because the appellant brought forward little evidence to support the existence of Aboriginal title to the Island or the property, and did not raise any prospect of appreciable, non-speculative adverse effect on their interests of conveyance of the property and the Province met its duty to consult.

HELD: Appeal dismissed. The duty was not triggered in this case. When the Province made its decision, there was no evidence or information before the government of a causal connection between transfer of ownership control of the property to the private sector and a potential adverse impact on the appellant’s pending claim for Aboriginal title. There was no use of the property by the appellant, either historic or present day, to be protected pending proof of the appellant’s claim. There was very little information or evidence provided in support of the assertion that based on exclusive occupancy at the time of British sovereignty it had Aboriginal title to all of Prince Edward Island or the property. If the duty to consult was triggered, then the Province clearly satisfied its duty. The Province’s process was reasonable. It appropriately identified the content of its constitutional law duty to consult, and it carried out a substantial and meaningful consultation process that satisfied its duty. The process that occurred was as complete and effective as it could be in the circumstances. The Province made a reasonable decision in determining that it satisfied its duty to consult. The interest to be protected was the ability to obtain the benefit of the appellant’s yet unproven claim to Aboriginal title to all of PEI, including the golf course property. The Province provided the appellant with timely and appropriate information regarding its general intention to divest its four golf course properties, and then regarding its specific intention to convey the property at issue. The Province requested information and evidence in support of the appellant’s claim to Aboriginal title and as to its concerns over potential adverse effect of the proposed conveyance. The appellant provided little by way of evidence or information to show how its asserted title claim would be eventually proven or as to its historic connection with the property. The total information and evidence that was before the Province in support of the appellant’s claim to Aboriginal title was scant, and the claim as presented to the Province was tenuous. There was no information or evidence provided to show potential or possible infringement or adverse impact on identified Aboriginal interest or association with the property because of conveyance of the property.

Mi'kmaq of Prince Edward Island v. Prince Edward Island, [2019] P.E.I.J. No. 66, Prince Edward Island Court of Appeal, D.H. Jenkins C.J.P.E.I., M.M. Murphy and J.K. Mitchell JJ.A., November 13, 2019. Digest No. TLD-January62020001