P.E.I. court dismisses appeal
Chief Justice David Jenkins says strength of the case supporting Aboriginal title was ‘weak’
The P.E.I. government’s sale of its Mill River golf course has cleared another legal hurdle after the province’s court of appeal found it didn’t breach a duty to consult Island Mi’kmaq.
In a unanimous 52-page decision, released on Wednesday, the court of appeal found the government didn’t have a duty to consult P.E.I. Mi’kmaq over the deal, but if it had, consultations it started and carried out exceeded what is required.
The appeal dealt with a P.E.I. Supreme Court decision on a request for a judicial review of the sale of the government’s Mill
River property to businessman Don McDougall in 2017.
That sale saw McDougall buy 324 acres of Crown land as part of a 20-year agreement.
McDougall agreed to buy the Mill River golf course and surrounding property for $500,000 with the province committing $6 million for capital improvements over 12 years.
The government also committed $1.6 million to cover operational losses in the first six years of the agreement, and it bought the resort on the property, which it then gave to McDougall.
In response to the deal, the Mi’kmaq of P.E.I., former Chief Matilda Ramjattan, on behalf of the Lennox Island First Nation, and former Chief Brian Francis, on behalf of the Abegweit First Nation, sought a judicial review.
P.E.I. Supreme Court Justice Gordon Campbell dismissed the judicial review in June, saying the government made reasonable efforts to inform and consult. That decision was appealed. Writing for the court of appeal, Chief Justice David Jenkins said a review of the information that was available to the province when it made its decision to sell the property shows that the duty to consult wasn’t triggered.
There was no information or evidence produced to show a potential adverse effect on an Aboriginal claim to the land or right, Jenkins wrote.
Jenkins wrote that consultation is a two-way street and the total of the information and evidence the Mi’kmaq gave to the province in support of a title claim was “scant” and that claim, as presented, was tenuous.
“I come to the conclusion that the strength of the case supporting Aboriginal title was weak.”
Jenkins wrote that the province did conduct substantial consultations with the Mi’kmaq in good faith.
If the duty to consult was triggered, Jenkins wrote, then the province clearly satisfied its duty.
In the appeal decision, Jenkins wrote that the Mi’kmaq provided little information to the government about any historic connection with the Mill River property and didn’t respond substantively to requests about how transferring land ownership would affect the rights and interests they claimed.
He also wrote that consultation doesn’t give veto power over what can be done with Crown land pending final proof of an Aboriginal title claim.
SUMMERSIDE – Halloween is a time of candy, costumes and, in some P.E.I. communities, arson.
Somehow, setting fires has become an Oct. 31 tradition, especially in the West Prince region.
That was the case on Oct. 31, 2018, when RCMP and firefighters in the West Prince region were dealing with four separate fires at abandoned or unoccupied properties.
Nathan Paul Gaudet, 21, of Palmer Road, is facing arson charges after being arrested at the scene of one of those fires.
That fire was at an unoccupied Nail Pond home in the early morning hours of Nov. 1. There had been a suspicious fire at the same building just two days prior, on Oct. 30.
Gaudet was charged with arson in relation to the latter incident and pleaded not guilty, electing to be tried by a Supreme Court judge alone.
His trial got underway Wednesday morning in Summerside.
Chief Justice Tracey Clements is hearing the case. Chris White is the Crown representative, and Derek Bondt is the defence counsel.
The trial is expected to last at least three days.
Wednesday’s proceedings featured testimony from RCMP officers who were either at the scenes of one of the two fires at the Nail Pond property or who dealt with Gaudet at the RCMP station following his arrest.
Const. Jean-Philippe Côté was the lead investigator and was the first to testify.
He reported being at the scene of another fire that night before being called to the blaze in Nail Pond.
“(Halloween) is a very busy time for us in West Prince. There’s a lot of property structures, mostly abandoned, that get burned down by people from around the area. Every year it’s a phenomenon that happens,” said Côté.
He added that this particular fire was reported by two local firefighters who were going home after putting out an earlier blaze.
The firefighters approached a car parked nearby the burning home and allegedly found an empty gas can inside, which they took out of the vehicle. Gaudet reportedly came out of nearby woods shortly thereafter and the firefighters reported his presence to RCMP.
When Côté arrived on the scene, he placed Gaudet under arrest.
Items found near the car included some cannabis paraphernalia and two license plates, one of which was folded in two.
All four RCMP officers who testified Wednesday reported a strong odour of gasoline coming from Gaudet’s clothes, which were seized as evidence.
During his questioning of the officers, Bondt wanted to know if any of his client’s clothes or other items had been forensically tested for the presence of gasoline. The officers all replied that no testing took place.
The final witness of the day was Gaudet’s ex-girlfriend who he allegedly called after being arrested.
She testified that Gaudet told her he’d “been caught lighting a fire”.
On cross examination by Bondt as to whether she might have been confused during that call as she had been awoken by it after working a night shift, she stressed that she clearly remembered Gaudet’s wording and was clear-headed by that point.
The trial resumes today at 9 a.m. in Summerside.