Canada: Duty To Consult Requires A Potentially Material Adverse Effect – Mondaq News Alerts

by ahnationtalk on May 19, 202049 Views

On April 23, 2020, the Supreme Court of Canada dismissed, with costs, an application for leave to appeal the PEI Court of Appeal’s decision in Mi’kmaq of P.E.I. v. Province of P.E.I. et. al. (Mill River)1. Mill River, released in November 2019, offered a fresh and helpful perspective on the Crown’s duty to consult.

The authors were counsel of record for the Province of Prince Edward Island (Province).

The original judicial review was brought by the Mi’kmaq of PEI (Mi’kmaq) when the Province sold the Mill River golf course, following a consultation process that started in 2012. The Mi’kmaq, who claim Aboriginal title to all of Prince Edward Island, argued that the Crown had not satisfied its duty to consult.

The Court of Appeal concluded that the Crown’s duty to consult never arose in the circumstances of the sale, and that the Province’s consultation efforts, in any event, were sufficient to discharge any duty to consult that arose.

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