Mill River appeal raises wider issue of Aboriginal rights over private land, lawyer says

The appeal by the Mi'kmaq of P.E.I. over the sale of Crown land in Mill River could have wider implications for how Aboriginal land claims are settled in the future — including land currently owned by private homeowners, says the lawyer representing the First Nations.

The province sold the land in western P.E.I., which included the Mill River resort, golf course and related properties, to businessman Don McDougall in 2017. The Mi'kmaq challenged the sale in P.E.I. Supreme Court, claiming the province had not met its constitutional duty to consult with First Nations on the sale of Crown land.

Last June, the Supreme Court dismissed the challenge saying government met, and exceeded, its duty to consult.

The Mi'kmaq of P.E.I., which includes the Lennox Island and Abegweit First Nations, appealed the decision. The case is now scheduled for the P.E.I. Court of Appeal for two days, beginning May 14.

What happens when a First Nation gets a declaration of Aboriginal title to land that's privately held?— David Rosenberg

In 2005, the Supreme Court of Canada ruled that "the Crown has a duty to consult and, where appropriate, accommodate when the Crown contemplates conduct that might adversely impact potential or established Aboriginal or treaty rights."

David Rosenberg, a lawyer from Vancouver who is representing the Mi'kmaq of P.E.I., said on the surface, the Mill River case is about whether the Crown failed in its duty to consult First Nations on P.E.I. before selling the property.  

But what's bound to come up in court, he said, is a larger issue — the intersection of Aboriginal rights and private property.

"What happens when a First Nation gets a declaration of Aboriginal title to land that's privately held, or what would happen, for example, to fee simple title holders who just own their own piece of property in Prince Edward Island or elsewhere in Canada? What happens to their rights when a First Nation comes along and gets that declaration of title from the courts to that land?" Rosenberg said.

"That's an unresolved question."

There are two cases before the courts in B.C. dealing with Aboriginal land claims that include thousands of private properties, Rosenberg said — the Cowichan case on the Fraser River and the Haida case in Haida Gwaii.

P.E.I. is in a unique position, he said, because unlike other provinces, most of its land — about 90 per cent — is privately owned.

"There's not much Crown land left, and that leaves the First Nations in a difficult position because they claim they've never been properly dealt with in terms of their land claims," Rosenberg said.

"At the end of the day, if they succeed in proving Aboriginal title to Prince Edward Island or to large portions of it, the land may already have been alienated or dispossessed to private interests, which might make it very difficult for their land claims to be properly honoured."

Different theories

Rosenberg said there are different legal theories — none of which have been tested in court — about what would happen to privately owned land that later is proven to have an Aboriginal title to it.

One, he said, is that the First Nations could get title to the land but won't necessarily have the right to dispossess or take the land from the private property holder. The remedy for the First Nation would be to seek compensation from the Crown for improperly dealing with that land without the consent of the First Nation.

Another theory, he said, is that if the private property comes up for sale, the Crown could have obligations to reacquire it for the First Nations.

A theory being advanced by private property owners is that, the Aboriginal title, if it existed, was displaced and will continue to be displaced as long as the property is privately held.

In the case of Mill River, Rosenberg said the primary relief being sought by the Mi'kmaq is to "quash or set aside the orders in council that authorized the sale." 

That's because, in the future, if the Mi'kmaq prove title to the land, whether the land is privately or publicly owned could be of great significance.

When contacted by CBC, Lynn Murray, the lawyer representing the province, and David Hooley the lawyer representing Don McDougall, said they don't normally comment on cases that are before the court. 

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