Jonathan Coady and Justin Milne

On June 25, 2018, the Supreme Court of Prince Edward Island (the “Supreme Court”) released its much anticipated decision in Mi’kmaq of P.E.I. v. Province of P.E.I.² This is the first time that the duty to consult with Indigenous persons has been considered in Prince Edward Island. The decision is expected to have significant implications for both the Government of Prince Edward Island (the “Government”) and Indigenous persons in Prince Edward Island.

Facts

The decision arose from an application by the Mi’kmaq of Prince Edward Island (the “Mi’kmaq”) seeking judicial review of the decision by the Government to sell the Mill River Resort to a private developer. The lands in question totalled approximately 325 acres. The Mi’kmaq argued that they had traditionally used the lands and that the lands were subject to an asserted claim of aboriginal title to the whole of Prince Edward Island. It was further argued that any transfer of land by the Government to a private party would have an irreversible adverse impact on the rights and title of the Mi’kmaq. The Mi’kmaq repeatedly told the Government that their consent was required before the lands could be sold. For its part, the Government argued that its duty to consult was not triggered by the sale and, in the alternative, that its duty was satisfied. The Government asked that the application be dismissed.

Overview of the duty to consult

In Haida Nation v. British Columbia (Minister of Forests),³ the Supreme Court of Canada confirmed that a provincial government is obligated to consult Indigenous groups when it has actual or constructive knowledge “of the potential existence of an aboriginal right or title and contemplates conduct that might adversely affect it.”⁴ The decision also recognized that the duty to consult takes its content from the surrounding context. When the claim being asserted is strong and the conduct would lead to a significant interference, a deep and thorough consultative process is required. When a claim is weak and the potential interference is relatively minor, the duty to consult rests at the low end of the spectrum.⁵ In other words, the level of consultation increases with the strength of the claim and the seriousness of the impact.

Strength of the claim and seriousness of the impact

The Supreme Court found that the claims being advanced by the Mi’kmaq were relatively weak and grounded in assertion. The record upon which the sale was based did not include any oral or documentary evidence that supported the claim that the lands were used for hunting, clay and wild fruit gathering, fishing, camping, or other activities. Rather, the record contained only correspondence on behalf of the Mi’kmaq that asserted the existence of such evidence. According to the Supreme Court, very little other than assertions had been provided to the Government.⁶

The Supreme Court also found that the potential impact on the claims being asserted was minor. The record included no evidence that the lands were of unique significance to the Mi’kmaq. On this point, the Supreme Court observed that, in the record, the Mi’kmaq had actually offered to lease the lands back to the private developer for continued use as a resort facility and golf course.⁷ The Supreme Court also observed that the lands had been used for those purposes for the last 35 years and would continue to be used for the same purposes. As for the argument that the sale of lands – in and of itself – would adversely impact the asserted claim of title, the Supreme Court found that any harm, if ultimately established by the Mi’kmaq, could be remedied by compensation.⁸ The Supreme Court therefore concluded that the Government’s duty to consult was at the low end of the spectrum.

Content of the duty to consult in this case

The Supreme Court proceeded to consider whether the Government had fulfilled its consultative duty. The record revealed that the Government had provided notice to the Mi’kmaq of the intended sale, shared information regarding the lands with the Mi’kmaq, asked for specific information from the Mi’kmaq regarding the potential impacts on traditional uses or activities, requested archeological evidence that the Mi’kmaq said was in their possession, and provided updates to the Mi’kmaq regarding the negotiations leading to the sale of the lands.⁹ Given its finding that the Government’s duty to consult was at the low end of the spectrum in this case, the Supreme Court concluded that the consultation process was sufficient.

Effect of the decision

The decision in Mi’kmaq of P.E.I. v. Province of P.E.I. offers a thorough account of the jurisprudence developed to date by the Supreme Court of Canada. The Supreme Court recognized that, at present, the duty to consult with Indigenous groups does not require a provincial government to obtain consent before an asserted claim to title has been proven. While the correspondence on behalf of the Mi’kmaq insisted that such consent was necessary,¹⁰ the Supreme Court noted that the law currently requires consent only after title has been established.¹¹ In other words, the Mi’kmaq held no veto over the sale of the lands based on the fact that they had asserted a claim of title to Prince Edward Island. The Supreme Court was careful to emphasize, however, that meaningful consultation imposes obligations on both governments and Indigenous groups. And, according to the Supreme Court, there was room for improvement in this case.¹²

The decision also sends a clear signal as to the importance of a well-developed record in cases where judicial review is sought of governmental decisions affecting the rights and interests of Indigenous persons. The Supreme Court of Canada has rightly found that the nature and type of evidence in Indigenous communities is different and cannot be confined by strict common law requirements.¹³ However, the Supreme Court of Canada has also directed lower courts that at least some evidence must be present in order to substantiate claims of Indigenous rights and title.¹⁴ Assertions alone are not sufficient. In the end, the Supreme Court found that it was confronted by a record that contained very little evidence and statements which overstated and misinterpreted the legal obligations on both the Government and the Mi’kmaq.¹⁵ These deficiencies appeared to frustrate the rich and meaningful dialogue that both desired when they signed their historic consultation agreement on August 13, 2012.¹⁶

<sup>1. “Epekwitk” was the name given by the Mi’kmaq to what is now known as Prince Edward Island. It means “resting on the waves.”
2. 2018 PESC 20.
3. 2004 SCC 73.
4. Ibid. at para. 35.
5. See Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council, 2010 SCC 43 at para. 36.
6. 2018 PESC 20 at para. 124.
7. Ibid. at para. 80.
8. Ibid. at para. 83.
9. Ibid. at para. 178.
10. Ibid. at paras. 21 and 166.
11. Ibid. at para. 167.
12. Ibid. at para. 181.
13. Delgamuukw v. British Columbia, [1997] 3 S.C.R. 1010 at para. 87. See also Ahousaht First Nation v. Canada (Fisheries and Oceans), 2008 FCA 212 at para. 37.
14. See e.g. Tsilhqot’in Nation v. British Columbia, 2014 SCC 44 at para. 38.
15. 2018 PESC 20 at paras. 157 and 167.
16. Ibid. at para. 9.</sup>