Case information

Aboriginal law — Claim of Aboriginal title — Duty to consult — Administrative law — Judicial review — Standard of review — Whether conveyance of Crown lands subject to claim of Aboriginal title constitutes adverse effect sufficient to trigger duty to consult — Whether duty to consult triggered when Crown contemplates sale of such lands — Whether Province acted dishonourably and in breach of duty to consult when it withheld information concerning strength of claim from Mi’kmaq during consultation — Standard of review applicable to Crown decisions on the existence and extent of the duty to consult.

Case summaries are prepared by the Office of the Registrar of the Supreme Court of Canada (Law Branch). Please note that summaries are not provided to the Judges of the Court. They are placed on the Court file and website for information purposes only.

The Mill River Resort sits on about 325 acres of land. It is owned by Prince Edward Island, but has been operated under a lease agreement for most of its 34-year existence. It had annual losses and was expected to require significant investment, so the Province wanted to sell it. The applicants (the “Mi’kmaq of Prince Edward Island”) claimed Aboriginal title in the land and said that selling it would adversely impact Mi’kmaq Aboriginal and treaty rights. Between July 2012 and January 2017, the Province and the Mi’kmaq of Prince Edward Island corresponded and met about Mill River. On January 10, 2017, the Mi’kmaq of Prince Edward Island met with the Provincial Cabinet, but were not told that the Province had decided to sell the land to Donald J. McDougall and 9711864 Canada Inc. Later that day, the Province issued two Orders-in-Council which granted Mr. McDougall and his company permission to acquire the land. The Mi’kmaq of Prince Edward Island applied for judicial review of the Orders-in-Council.

Campbell J. dismissed the application for judicial review. The Court of Appeal dismissed the appeal and the application for judicial review