Mi’kmaq fighting deal
Mi’kmaq Confederacy files motion for injunction against Don McDougall, new owner of Mill River Resort
Prince Edward Island’s Mi’kmaq chiefs and the Mi’kmaq Confederacy of P.E.I. have filed for an interim injunction against the new owner of the Mill River Resort, Don McDougall, as part of an ongoing dispute over the province’s controversial Mill River deal.
The chiefs and the confederacy claim they were not properly consulted on the deal, as required by law, and filed for a judicial review of the sale of Mill River to McDougall in February.
Then on May 30, David Rosenburg of McInnes Cooper, legal counsel for the Mi’kmaq in this case, filed a motion for an interlocutory injunction that would restrict McDougall from disposing of or transferring any rights to or interest in the Mill River property.
“The decision by the province to sell the lands without fulfilling its obligations to consult and accommodate the applicants is unconstitutional, a breach of fiduciary duty and contrary to the honour of the Crown,” the motion says.
Meanwhile, the province filed its own factum for the judicial review case on June 1, asking the Supreme Court of P.E.I. for a dismissal. The province claims it did not have an obligation to consult the Mi’kmaq regarding the sale of the Crown land and, even if it did, the province claims it “meaningfully fulfilled its obligation to consult” on this transaction.
The deal itself was revealed publicly on Jan. 12, when government announced it was selling 325 acres of Crown land as part of a 20-year agreement with McDougall that would see him purchase the Mill River golf course, resort, campground and fun park for $500,000. The province committed to invest $6 million in capital improvements over 12 years and another $1.6 million for some anticipated operational losses in the first six years. Government also purchased the resort from Rodd Resorts for $1.8 million and gave it to McDougall as part of the agreement.
Conversations about the sale of this property and the other three provincially-owned golf courses began back in 2012, when the province announced its intentions to sell the moneylosing courses, court documents show.
In an affidavit filed in the Supreme Court, Don MacKenzie, the executive director of the Mi’kmaq Confederacy of P.E.I. (MCPEI), says they first raised concern over not being consulted when a story appeared in The Guardian in November 2014 indicating the province was in discussions with a prospective buyer for the Mill River golf course.
“The Mi’kmaq of P.E.I. informed the province that this was surprising considering they had not yet received any consultation notification,” MacKenzie states in his affidavit.
This began a series of backand-forth correspondence between the province and MCPEI, in which the two parties discussed the request for consultation and the Mi’kmaq’s claim that the property contained archeological sites historically significant to the Mi’kmaq.
The province disputes this claim, citing a 1984 survey that found no archeological sites within five kilometres of the lands.
The Mi’kmaq officially objected to the sale of Mill River in October 2016, asserting Aboriginal land title not only to this property but to all lands and waters of P.E.I.
But then in December 2016, it presented an alternative proposal, asking the province to give Mill River to the Mi’kmaq of P.E.I., who would immediately enter into a long-term agreement of 50 to 75 years with McDougall.
“This would allow the company and/or Mr. McDougall to get the necessary financing and operate the proposed facilities for a very lengthy period of time, preserving the interest of the Mi’kmaq of P.E.I. in the lands in question,” MacKenzie says in his affidavit.
“The province would also be able to remove itself from these revenue losing ventures.”
Government rejected this proposal, saying McDougall would “walk away from the deal.”
The province argues the Mi’kmaq did not provide any details about how the transfer of these lands would negatively impact their claim to the land, especially since the property in question has been operated commercially since 1983.
“The province’s position is that it did not have a duty to consult as there was no adverse impact resulting from (selling the lands) … which were already developed as a golf course, water park, campground and hotel and were operating as a going concern,” government’s factum states.
MCPEI is seeking a declaration that the province failed in its duty to consult and accommodate the Mi’kmaq on this deal and that the transfer of land to McDougall be declared invalid.
MCPEI has also provided government with the required 90-day notice that it intends to launch a separate court action to seek a declaration that the Mi’kmaq Confederacy has Aboriginal title to all of the lands and waters of Prince Edward Island.