On November 13, 2019, the Prince Edward Island Court of Appeal released its decision in Mi’kmaq of P.E.I. v. Province of P.E.I. et al., 2019 PECA 26 which considered whether the duty to consult arose and was satisfied when the Government of Prince Edward Island (Province) decided to sell the Mill River Resort (Mill River) as part of a larger ongoing initiative to divest of provincially-owned golf courses.
In assessing the conduct of the Province, the Court of Appeal considered (a) whether the duty to consult arose and (b) whether the Province satisfied the duty to consult. The Court concluded that the duty to consult was not triggered and that the Province’s consultation efforts would have satisfied the duty to consult had it been triggered.
In conducting its assessment, the Court asserted that its decision was based entirely on existing law and did not add or supplement jurisprudence. The Court followed the well-worn approach set out by the Supreme Court of Canada when assessing the Province’s consultation record. Consequently, the bulk of the Court’s reasons addressing elements of the consultation process provide little jurisprudential value other than for the parties.
In contrast, the Court’s approach to considering whether the duty to consult was triggered in the circumstances carries implications for rightsholders and governments across Canada. While the Court based its approach on the guidance of the Supreme Court of Canada, this decision marks one of the few examples of a court critically examining the triggering of the duty to consult and helps to enrich (rather than add or supplement) Canadian jurisprudence on the duty to consult.
Tom Isaac and Arend Hoekstra of Cassels acted as counsel of record for the Province of Prince Edward Island.