Justin Brake

Two Mi’kmaq First Nations in Prince Edward Island are in court this week to establish their right to be consulted on what happens to land they say they’ve occupied for more than 10,000 years.

And the outcome could have major implications for the Mi’kmaq of P.E.I., and potentially throughout the traditional and unceded Mi’kmaq territory in Atlantic Canada.

They’re challenging the provincial government over its sale of a golf course and resort on Crown land to a private investor.

The province announced the sale of the 325-acre Mill River Resort last February to Don MacDougall, an Ontario-based businessman and founder of the Toronto Blue Jays.

Lawyers for the Mi’kmaq Confederacy of P.E.I., an organization representing the Abegweit and Lennox Island First Nations, have said in court filings the Confederacy requested meaningful consultations and accommodations regarding the sale of the resort, but that the government merely listened to their concerns and did not adequately consult with Mi’kmaq leadership.

David Rosenberg, a lawyer representing the Mi’kmaq in their application for a judicial review of the government’s sale of the resort, said it’s possible that the province, in determining whether or not and to what extent it would engage with the Mi’kmaq chiefs, “was still entrenched in its own procedures, which was business as usual.”

Rosenberg said the province perhaps did not consider how recent Supreme Court decisions, such as the landmark 2014 Tsilqot’In First Nation decision, have given new meaning to the Crown’s duty to consult.

The province, in its court filings, said it did not have an obligation to consult with the Mi’kmaq, but that if it did that duty to consult was “at the low end of the consultation spectrum as set out by the Supreme Court of Canada.”

Abegweit First Nation Chief Brian Francis told APTN News that anytime he and Lennox Island First Nation Chief Matilda Ramjattan feel their “rights have been infringed upon, or are in jeopardy, it’s our responsibility as Mi’kmaq leaders to step up to the plate and protect those rights at all cost.”

Cheryl Simon, a member of Abegweit and lawyer who specializes in Indigenous governance, said the fact that most of the land on P.E.I.—which the Mi’kmaq have long maintained is unceded—has been made private property adds extra weight to the Confederacy’s case.

“I think the significance of the acreage involved has to be taken into account when you consider that the province only has 12 per cent of Crown land available to work with when it comes to dealing with any types of Aboriginal title cases or issues,” said Simon.

The province argued that part of the reason it did not have a duty to consult the Mi’kmaq on the sale of the resort is because the Mi’kmaq have only asserted, but have not yet proven, Aboriginal title to the island.

Rosenberg said that regardless of whether the Mi’kmaq have proven title in the courts, the province still has “an obligation to consult with the First Nations about that territory or their resources so they don’t disappear between the time a First Nation brings its claim and it can be established in court.

“So really the duty to consult relates to the fact that the honour of the Crown requires that in its management of resources it protects them in a way for the benefit of the First Nation until they’ve had a chance to establish their entitlement,” he said.

Simon said the P.E.I. chiefs have worked hard in recent years to establish an effective working relationship with the province, and that she worries the province’s refusal so far to acknowledge a duty to consult and accommodate “is going to have a larger impact on the overall reconciliation of Aboriginal issues within the province.”

Hearings for the case are expected to conclude Friday.