Winnipeg Free Press - PRINT EDITION

Tories appeal Kapyong ruling a second time

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OTTAWA -- For the second time, the federal government is appealing a court decision requiring it to fully consult Treaty 1 First Nations in Manitoba before selling the Kapyong Barracks site.

A spokeswoman for the Department of Defence said the government filed its appeal late Friday afternoon.

"The main grounds for appeal are that the Federal Court judge made errors in law with respect to what he ordered and his analysis of the duty to consult," Kathleen Guillot said.

This will indefinitely extend the legal battle over the 64.7 hectares of prime real estate at Kenaston Boulevard and Grant Avenue, which has now lasted more than five years.

Jeff Rath, the lawyer for Peguis First Nation, one of the Treaty 1 bands, said he was surprised Ottawa is appealing, because he said the government admitted in court it did have a duty to consult the First Nations on the sale of Kapyong, at least when it came to Peguis.

He said the government's argument is that it fulfilled that duty, but the judge in the case disagreed.

"To me, it just seems the Crown is simply trying to delay the inevitable," Rath said.

In 2004, the Second Battalion Princess Patricia's Canadian Light Infantry vacated the barracks and moved west to Shilo, Man.

Three years later, the federal government declared the barracks land surplus and moved to sell it to the Canada Lands Co. for $8.6 million. The CLC, a Crown corporation that redevelops surplus federal land, planned a mix of homes and businesses on the site.

But the seven Treaty 1 First Nations argue a 1997 agreement gave them the right of first refusal when surplus federal land become available, to fulfil outstanding land entitlements from the 1871 Treaty 1. Shortly after Ottawa moved to sell the land, the seven Treaty 1 First Nations went to court to stop it.

The land in question is only the barracks site itself and does not include the military homes in the vicinity. That property is to be dealt with separately.

In 2009, a Federal Court judge ordered Ottawa to freeze the sale of the land until consultations were undertaken with the bands. That decision was rescinded on appeal in 2011 and the case was returned to the lower court for another hearing. Last month, a second federal judge again ordered Ottawa to consult four of the seven First Nations concerned.

Ottawa is now appealing that second decision.

Since 2005, taxpayers have spent $14.7 million on the empty barracks, including for utilities, operations and maintenance, property taxes, site security and site management. Ottawa has also spend several hundred thousand dollars on legal fees.

Treaty 1 First Nations want to develop the site to generate income for their bands and have said they would be open to ideas that work for both the city and themselves.

In December, a highly placed Conservative government source told the Free Press the government was open to selling the land to the First Nations, but only on condition the land not to be turned into an urban reserve.

No date has been set to argue Ottawa's appeal.

Republished from the Winnipeg Free Press print edition January 22, 2013 B5

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