Judge freezes Kapyong

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A judge ruled Wednesday that proper consultations must occur with eligible First Nations over the Kapyong Barracks land. (BORIS.MINKEVICH@FREEPRESS.MB.CA)

OTTAWA -- Any hope of seeing development at the old Kapyong barracks site in southwest Winnipeg sometime soon evaporated Wednesday when a federal judge ordered the government to shelve its decision to sell the land until after it consults with Manitoba First Nations.

The land, about 225 acres at Kenaston Boulevard and Grant Avenue, has been in limbo since 2004 when the Princess Patricia's Canadian Light Infantry Unit shipped out to Shilo, Man.

In November 2007, the Treasury Board, under president and Manitoba senior cabinet minister Vic Toews, ordered the land sold for $8.6 million to the Canada Lands Company for development. The federal Crown corporation planned to turn the land into an innovative mix of housing, shops and parks.

But in January 2008 the seven Treaty One First Nations filed a court case to halt the sale, arguing they had claims to the land through treaty land entitlement.

The court case halted any work on the property, and as it dragged on Canada Lands even closed its Winnipeg office fearing it would be years before it might get the land, if ever.

The court case was argued in early September and Wednesday Judge Douglas Campbell ruled in favour of the First Nations.

Ottawa had argued because it paid money to the First Nations they no longer had any land claims to make against Kapyong, but Campbell said that was not true.

He said there were several legal precedents outlining both the duty of Ottawa to consult First Nations and how it should be done.

He noted only two First Nations in Treaty One are affected -- Peguis and Brokenhead -- because they are the only two with provable rights to buy surplus federal land.

Campbell said while there was some discussion between the federal government and two of the First Nations about it, he says it was clear to him Canada had no intention of ever granting meaningful consultation.

He also said if Canada went ahead and sold the land to Canada Lands it would put the land out of reach to the First Nations. Therefore, he said Canada must not transfer the land and ordered that the process retreat back to the point in November 2007 when the decision to sell the land was made.

Norman Boudreau, the Winnipeg lawyer acting for the First Nations, said the judgment was a full victory for them.

"The judge has rejected any and all arguments made by Canada," he said.

Winnipeg Liberal MP Anita Neville, whose Winnipeg South Centre riding includes Kapyong, said she thinks the decision will disappoint a lot of people who had been hoping to see something done with the property.

She pointed out it is a prime location and putting off development will impact municipal planning and development, including helping ease traffic woes along Kenaston Boulevard.

Ottawa has spent over $10 million maintaining the vacant barracks since 2004.

Neville said the government can either appeal the decision or sit down with the First Nations and talk.

Toews did not respond to a Free Press interview request. Neither did the federal attorney who argued the case for Ottawa.

Boudreau said he doesn't believe the Canadian government will appeal, especially since it was a seasoned and respected appeals judge who made the ruling.

The ruling doesn't mean Kapyong will be handed automatically over to the First Nations, but it does mean development won't be moving forward any time soon, said Boudreau.

Ottawa will have to go back to square one and consult with the Treaty One bands and there is a requirement to accommodate their wishes in some way. That means the land won't be turned over to Canada Lands for some time, if at all.

Boudreau also says the case sets a precedent for other big projects where bands have appealed to the courts for proper consultation.

Peguis Chief Glenn Hudson applauded the decision.

"It's tremendous, wonderful," said Hudson.

Hudson wouldn't say exactly what the bands may propose for the barracks land. But Treaty One chiefs have already been in some spotty talks with Ottawa over Kapyong, and they expect discussions to start as soon as possible.

mia.rabson@freepress.mb.ca maryagnes.welch@freepress.mb.ca

Kapyong history

What is it:

KAPYONG Barracks is a 225-acre site at the corner of Kenaston Boulevard and Grant Avenue that was home to the Second Battalion Princess Patricia's Canadian Light Infantry until 2004. That year, the soldiers and their families moved to Shilo, near Brandon, abandoning the barracks and 350 military-built homes that surround it.

What was supposed to happen:

The land is a prize jewel for developers, sitting adjacent to two of the city's wealthiest and most desirable neighbourhoods, River Heights and Tuxedo, and at the entrance to the growing southern corner and its Whyte Ridge, Linden Woods and now Waverley West suburbs.

Ottawa planned to sell the land to Canada Lands Company. The CLC purchases surplus federal properties at fair market value, then improves, manages or sells them in order to achieve optimal financial and community value.

It handles only so-called strategic properties, defined as those that are complicated or have potential for significantly enhanced value. At Kapyong, Canada Lands was going to create an innovative development, with homes, shops and parks.

What did happen:

Although the military knew as early as 2001 the Princess Patricias would be moving, and it happened in 2004, the decision to sell the land to CLC was delayed for years, caught up in government red tape. Finally in November 2007, Treasury Board president and senior Manitoba cabinet minister Vic Toews announced the sale was approved for $8.6 million. The sale only dealt with the barracks themselves, not the 350 homes and the land on which they sit.

It was hoped the sale would be finalized in early 2008 and CLC would have a land-use plan ready to take out for community consultations by the end of that year.

But in January 2008, the Treaty One First Nations filed a legal claim to the land in federal court, arguing they were not consulted. They say they are owed 64,000 acres of land in outstanding claims and should have had a crack at the Kapyong site. They'd like to turn it into an urban reserve, with schools, homes and businesses that will generate money for First Nations people.

The First Nations had long talked about acquiring the land but Canada said they had a legal decision indicating the First Nations had no claim to the land. In 2006, First Nations said they would go to court if they had to. They made good on that pledge in 2008.

The case was heard in Winnipeg in September, and the judge ruled Wednesday in favour of the First Nations.

What happens now:

The federal government will either have to appeal the court decision or make plans to sit down with the Treaty One First Nations to discuss mutually agreeable uses of the land. The judge in his decision encouraged both sides to remember consultation means there is a "shared responsibility to have the consultation succeed."

In the meantime, the land will continue to sit vacant.

What is the impact:

The land is valuable and every day it sits vacant costs money. Ottawa spends over $6,000 a day just to maintain the barracks land, and has spent more than $10 million on maintenance since 2004. Some of the homes are rented to military families, but not all of them. In 2008, Ottawa spent $673,000 to maintain 110 vacant homes, paying for property taxes, heating bills, lawn-mowing and other general maintenance costs.

It also isn't generating revenues for the city in the form of property taxes from the homes and businesses that could be built there.

Republished from the Winnipeg Free Press print edition October 1, 2009 A3