Federal government again appealing Kapyong ruling

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

A spokeswoman for the Defence Department 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," said Kathleen Guillot.

This will indefinitely extend the legal battle over the 160 acres 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 One bands, said he was surprised Ottawa is appealing because he says in court the government admitted 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," said Rath.

In 2004, the Princess Patricia Light Infantry Unit abandoned the barracks to move west to Shilo, Man. Three years later, the federal government declared the barracks land surplus and moved to sell it to the Canada Lands Company for $8.6 million. CLC, a Crown corporation that redevelops surplus federal land, planned a mix of homes and businesses on the site.

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

The land in question is only the 160 acres of the barracks themselves, and does not include the military homes surrounding the barracks. That parcel is to be dealt with separately.

In 2009, a Federal Court judge ordered Ottawa to freeze any 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 That decision was rescinded on appeal in 2011 and the case was returned to the lower court for another hearing. A second federal judge last month again ordered Ottawa to consult with the First Nations, this time four of the seven.

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. Several hundred thousand dollars have also been spent by Ottawa on legal fees.

Treaty One 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 the First Nations.

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

No date is yet set to argue the appeal.

mia.rabson@freepress.mb.ca