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Kapyong land in limbo
Jan 24, 2013
A vital link is missing from the extensive retail corridor stretching from Polo Park down Kenaston Boulevard to Sterling Park Driveway. Kapyong Barracks remains the unknown in the extensive retail corridor since it is still being dealt with in Canada’s court system. Just recently, the Canadian government announced it is appealing an earlier court decision requiring that it fully consult Treaty 1 first nations before Kapyong Barracks is sold. With the Department of Justice filing the appeal, the now long-standing legal battle ensures that a piece of prime real estate is placed on indefinite hold.
But the protracted delay in redeveloping the former armed forces base should have been anticipated and prevented. All the signs were in place years ago that a first nations challenge would be forthcoming if they weren’t given first crack to acquire the land. Well before the Princess Particia’s Canadian Light Infantry left the base in 2004 for Shilo, I interviewed then Brokenhead Chief, Harvey Olson, about the fate of the 65-hectares of land (published in the Real Estate News on January 25, 2002).
“We definitely have first rights (to the former base) under our (treaty land) entitlement agreement,” said Olson. “Because of our location so close to the city, we’re considered an urban first nation; therefore, Winnipeg is now considered in our Community Interest Zone.”
According to the Brokenhead Ojibway Nations’ entitlement agreement, signed on September 9, 1998, between the band and the federal and provincial governments, Brokenhead could acquire up to 5,860 hectares (14,481 acres) of new reserve land from a pool of provincial and federal Crown lands. The Canadian government also gave Brokenhead, located 25 kilometres south of Grand Beach, $3.7 million to enable the band to purchase up to 4,102 hectares (10,137 acres) of private land where Crown land is not available. Another $352,395 was a federal payment “for the use and benefit of the Brokenhead Ojibway Nation.”
At the time when the article was written, Patrick Hamilton, the then chair of the WinnipegREALTORS® government affairs committee, said the Kapyong base offered “a number of development opportunities.”
While the land was unlikely to be sold to the private sector because of Brokenhead’s claim or a possible sale to a Crown corporation, Hamilton said that fact didn’t prevent the private sector from being shut out of future development.
“It’s a long-term thing,” he said. “There would be a lot of upfront costs as in most land developments. It takes time and money.
“Some type of joint venture arrangement could be made.”
Olson agreed. “We’re confident private-sector groups will, come forward — they can’t pass up on this economic opportunity.
“We’ve had some verbal patting on the back (for private developers) — ‘give us a call’ sort of thing.”
But Olson wasn’t actually sure about what would happen with Kapyong Barracks, especially how the federal government would handle its sale.
“We don’t know what the feds will do,” he commented. ‘They could sit on it for 10 years.”
In fact, the feds didn’t wait 10 years, but just three years to declare the land surplus.
Yet, while the business community seemed to have an inkling that the fate of the land wasn’t altogether straightforward and warning signs of a first nations challenge were vividly flashing, Ottawa still went ahead and announced the sale of the barracks — not the land on which military homes sit — to Canada Lands Company, a Crown corporation set up to either manage or redevelop federal land declared surplus, for $8.6 million in 2007. Not unexpectedly, Brokenhead — joined by six other Treaty 1 first nations — went to court to stop the sale.
Under the terms of their Treaty Land Entitlements, the first nations have continually argued each court case that they have “first right” to any surplus federal land in order to settle outstanding land claims not fulfilled by 1871’s Treaty 1. 
In 2009, a Federal Court judge agreed and ordered a freeze on the land sale until the seven bands were consulted. That decision was appealed by the federal government, resulting in a 2011 reversal of the decision. Last December, another federal judge ordered that the first decision be upheld and the federal government begin consultations with the bands. (The Conservative government maintains that it has consulted with the bands.) The federal government’s appeal alleges Justice Robert T. Hughes acted beyond his jurisdiction and should not have ruled the sale of the land to Canada Lands Company be frozen.
Meanwhile, the Free Press was allegedly told by “a highly-placed Conservative government source” in December that Ottawa was prepared to sell the land to the first nations, provided it wasn’t turned into an urban reserve.
But that was always the objective of the bands. In 2002, Olson told the Real Estate News that the band would approach Indian Affairs to have the barracks land turned into an urban reserve. Since urban reserves are no-tax zones, he said, a deal would be struck with the city to provide services. 
In other urban reserves in Saskatchewan, an annual fee is the norm to cover municipal services and the loss of tax revenues. But urban reserves must comply with provincial laws and municipal bylaws.
What Canada Lands Company intends to do with the land should the federal government win its appeal remains a matter of speculation. But in other instances, the Crown corporation has turned abandoned bases into residential housing projects with limited commercial development. When it acquired CFB Calgary, Canada Lands converted it into a development called Garrison Woods, which incorporated the principle of “New Urbanism” — narrow streets, broad sidewalks, original streetscaping and readily accessible transit.
At the time, Ken Toews of Canada lands said it was “a one-of-a-kind urban village in the middle of the big city,” and that it was “an integrated community where people can live, work, play and be educated.”
But that’s Ottawa’s vision. It is probable that the first nations will win the last battle for the Kapyong Barracks, and they may come up with some version of their own Garrison Woods.
In the end, Olson was right in 2002 when he predicted it would eventually take years for a resolution to be reached. In the meantime, an extremely valuable piece of Winnipeg real estate sits idle and isn’t benefiting anyone.