Mill River land sale was hidden from Mi'kmaq, lawyer charges at hearing

P.E.I.'s Mi'kmaq First Nations were at the same provincial cabinet meeting that approved the sale of Crown land at Mill River, but the issue never came up, a judicial review into the land sale heard Wednesday.

The two Mi'kmaq First Nations are challenging the sale to private developer Don McDougall, saying meaningful consultation was required, but did not happen.

The province announced the sale of the Mill River golf course, fun park, camp ground and resort to McDougall in January 2017. 

Giving testimony Wednesday morning was Neil Stewart, who was with the P.E.I. Department of Economic Development at the time of the sale in January 2017.

David Rosenberg, lawyer for the Mi'kmaq Confederacy of P.E.I., asked Stewart about a series of letters from the Mi'kmaq Confederacy to the province, submitted into evidence by the confederacy.

On March 12, 2015, and again on April 24, confederacy executive director Don MacKenzie asked the province whether a decision on the sale of Mill River was pending, and if so, whether there would be "an opportunity for the Mi'kmaq to appear and make submissions?"

Under questioning from Rosenberg, Stewart said he was "not aware of a formal response" to either of those letters.

'Level of betrayal'

Rosenberg then moved on to the timeline for the authorization of the sale by cabinet to McDougall, which was provided at a cabinet meeting on Jan. 10, 2017.

According to a letter from P.E.I.'s two chiefs to Premier Wade MacLauchlan, who was also minister of Aboriginal affairs at the time, the Mi'kmaq Confederacy was only informed of the sale the following day, even though band members met with cabinet at the same Jan. 10 meeting where the sale was authorized.

"Adding insult to injury, with our full Band Councils present … we sat and listened to you speak about the importance of the relationship between the Province and the Mi'kmaq," the letter states.

"In reality, and what you hid from us, was that you were simultaneously planning to convey the very property against our strenuous rights-based objections. Premier, it is difficult to find the words to properly describe the level of betrayal that we feel."

Stewart noted that government had advised MCPEI of its intention to sell the land to a private developer in a letter dated Oct 19, 2016.

A plan from the Mi'kmaq

According to this and other letters entered as evidence as part of the judicial review, MCPEI had put forward a proposal that the land "be conveyed to the Mi'kmaq, who would enter into a very long term lease with the proposed developer."

According to the letter, the response given from government was that "the private sector developer would not be interested in this proposal and would walk away."

The Crown did not act honourably.— David Rosenberg

Rosenberg argued government disposed of the property without discussing alternatives with MCPEI, or providing reasons for government's rejections of MCPEI's proposal. He said requests from MCPEI to meet to discuss its proposal were ignored.

"The Crown did not act honourably" in the transfer of the property in question to a third party, Rosenberg argued, "and that left the process of reconciliation in need of repair."

Under cross-examination by one of the lawyers representing the Crown, Stewart said government had not ignored the information put forward by the Mi'kmaq Confederacy.

In documents the province has filed, it argues the government had no duty to consult because the Mi'kmaq land claim to all of P.E.I. is "speculative" in nature. But the government says even if it did have a duty to consult with the Mi'kmaq on this sale, it fulfilled that duty.

Wednesday is day two of a judicial review expected to last three days. Lawyers for the Crown and for Don McDougall have not presented their oral submissions.

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