Appeal Copurt’s ruling on Kapyong Barracks

“Consult.” That was the ruling by  three Federal Court of Appeals judges when upholding an earlier lower court decision.

Consult on what? Why, the sale of Kapyong Barracks land. The appeal judges said it was Ottawa’s obligation to consult with four First Nations bands — Peguis, Swan River, Long Plain and Roseau River — although the judges also said the bands bore some of the fault for delaying the process to resolve the matter.

Unfortunately, the ruling doesn’t mean that there is an end in sight, as the federal government can appeal the recent decision to the Supreme Court of Canada. Whether it should is mired in the politics of the day; that is, it will probably depend upon which party forms the government after the October 19 election.

The sale of the former Canadian Armed Forces Kapyong Barracks in south Winnipeg has been ongoing for over a decade. During that period, a number of suggestions have been made as to how the land will be redeveloped and by whom.

Kapyong became surplus land in 2004 when the soldiers of the 2nd Battalion of the Princess Patricia’s Canadian Light Infantry were transferred to CFB Shilo. But the sale of the 65 hectares of land and buildings that made up the former military base has been plagued by numerous delays. When the federal Treasury Board finally reached a decision to permit the sale to Canada Lands Company, a Crown agency dealing with surplus federal land, it wasn’t a done deal.

CLC has been instrumental in redeveloping a number of surplus military bases across Canada, including the highly-acclaimed Garrison Woods development. The redevelopment of the former CF air base has been called “not only unique in Calgary, but in all of Canada.”

Garrison Woods was developed under the basic principles of New Urbanism — narrow streets, broad sidewalks, original streetscaping and easy access to public transit.

“It (Garrison Woods) is a one-of-a-kind urban village in the middle of the big city,” said Ken Toews of CLC. “It is an integrated community where people live, work, play and be educated.”

But another group wanted a say in who works, plays and lives at Kapyong.

Seven southern First Nation bands warned Ottawa that they will go to court to halt the sale (for approximately $9 million) of the land to CLC. The CLC land purchase does not include the houses along Kenaston, which will be part of a separate deal.

In 2007, then Treasury Board President Vic Toews — now a Manitoba Court of Queen’s Bench judge — called the sale to CLC a done deal, but that’s when the bickering started over who would end up owning the prime piece of Winnipeg real estate.

Toews shouldn’t have been surprised that the First Nations were prepared to intervene and halt the sale.

Before the Treasury Board’s sale announcement, former Brokenhead Chief Harvey Olson told the REN that his band “definitely has first rights under our (Treaty Land) Entitlement (TLE). 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.”

In January 2008, the bands filed their case to halt the sale. In 2009, the court ruled that Ottawa had failed in its obligation to consult with Peguis and Brokenhead on the sale. Ottawa appealed that decision and a federal court ruled that the lower court judge had not provided sufficient legal reasons for the decision and sent the entire case back to the lower court to be argued again, but the 2012 ruling was again not in Ottawa’s favour.

Harvey warned that the federal government could sit on the Kapyong land for up to 10 years before making a decision on its sale, although he remained confident that Ottawa would recognize Brokenhead’s claim — after all, Treaty Land Entitlement land was owed and Kapyong seemed a great fit for the reserve’s aspirations to expand beyond its borders along Lake Winnipeg.

As the years progressed, the claim to Kapyong was enlarged to include the First Nations of Brokenhead, Roseau River, Peguis, Long Plain, Sandy Bay, Swan Lake and Sagkeeng, whose ancestors signed Treaty No. 1, which ceded most of southern Manitoba to the Queen (Canadian government) in exchange for reserve land (160 acres per family of five), agricultural implements, cattle, small sums of treaty money, etc. The contention of the southern Manitoba First Nations is that not all land owed to them under the original terms of Treaty No. 1 signed in 1871 were received. The federal and provincial governments agreed and commenced the process of TLEs.

“Regard this letter as official notice that the Treaty One First Nations lay claim to the lands known as Kapyong Barracks land, as part of their unfulfilled treaty land entitlements ... owed to First Nations,” wrote the seven chiefs to then federal Indian Affairs Minister Chuck Strahl, Attorney General Rob Nicholson and Treasury Board President Vic Toews.

Long Plains Chief Dennis Meeches told the media that they had no choice but to take the government to court because their “backs are against the wall.”

The chiefs were adamant they get first crack at any federal land declared surplus in southern Manitoba because of their TLEs.

Brokenhead has since withdrawn and was not an applicant in the recent appeal case, while Sandy Bay and Sagkeeng had their claims dismissed by the lower court in 2012.

Chief Olson was quite correct when he originally said that settlement of the former Kapyong Barracks land question could take up to 10 years to be resolved, although there still remains the question of the two parties sitting down and beginning the consultation process.

“Finally, it is to be hoped that whatever rancour, bitterness and mistrust among the parties may have existed in the past, the parties will now proceed to engage in constructive, respectful consultations concerning the barracks property for the benefit of all,” wrote Justice David Stratas for the three-member Federal Court of Appeal on August 14.

The judge also said that the four First Nations had at times sabotaged their own cause when they failed to act on federal government invitations to undertake consultations. Consultation is a “two-way street,” Stratas added.

Meanwhile, the federal government has spent $10 million in taxpayers money on the upkeep of the Kapyong land over the years while squabbling with the First Nations bands. Its an amount that exceeds the original sale price of the land to CLC.

The Appeal Court also noted that Ottawa’s only obligation is to engage in good faith consultations with the First Nations bands. Once this obligation is completed, the government can sell the land to whoever it wants. Still, it would be morally appropriate to fulfill past treaty obligations and work out some form of partnership with the First Nations  bands when developing Kapyong.