It's a complicated story, involving arcane legal principles and multiple parties. However, it's impossible to get beyond the simple fact Friday's court decision involving the future of Kapyong Barracks is incredibly unflattering for the federal government.
In review, Ottawa spent more than $10 million over the past decade maintaining an abandoned military barracks and accompanying base housing while it fought four First Nations that wanted the first right to buy the land. On Friday, a federal court decided Ottawa failed to meet its duty to consult with and offer the land to those First Nations.
The kicker? The land and buildings were valued at $8.5 million. That valuation is a few years old, and the value could have risen. Even so, it appears Ottawa spent more than the land was worth to keep it from falling into the hands of First Nations.
If you're confused, you're in good company. Almost no one following this story can imagine a sane and rational explanation for this colossal waste of money. How did we get here?
In 2000, Ottawa decided to abandon Kapyong Barracks, then part of CFB Winnipeg, as part of a massive plan to re-organize military assets. In this case, the plan was to consolidate the 2nd Battalion Princess Patricia's Canadian Light Infantry at CFB Shilo, near Brandon. From the moment that decision was made, talk started about uses for the barracks land and accompanying base housing that extended north along Kenaston Boulevard. The initial plan was to sell the land to the Canada Lands Co., a Crown entity that specializes in the redevelopment of federal assets. The CLC envisioned a mixed-use development involving private developers.
The problem was that there was a legal obligation to offer the land to First Nations before other plans could be discussed or approved. A 1997 agreement with the Treaty One bands gave them the right of first refusal on surplus federal lands. Seems simple; offer the land to First Nations, contemplate offers, move ahead with redevelopment.
Unfortunately, Ottawa didn't fulfill that obligation. The federal court on Friday made it clear that although there was some contact between the federal government and the affected bands from 2001 to 2004, it did not warrant a thorough consultation. Later, from 2006 onwards, the court found Ottawa simply "ignored" the applicants and their claims, and transferred the land to the CLC.
If the duty to consult was so clear, and there is little doubt from the case laid out by the court that it was, how could Ottawa have swept aside the interests of First Nations? There are, perhaps, three explanations.
First, a bureaucratic brain fart of some sort. Although not the best excuse, perhaps bureaucrats did a poor job of consulting, assumed that would satisfy the First Nations, and recommended a sale to the CLC without considering the consequences. It's possible but not probable.
The second scenario involves poor or reckless political oversight of the bureaucrats. Our political leaders cannot make up the rules as they go along, but they can help the bureaucracy make the best decisions possible if and when a process runs off the rail. This responsibility fell to ministers from two different governments.
In the early 2000s, the Liberals were in power and ministers such as Lloyd Axworthy, Ron Duhamel and Rey Pagtakhan would have been responsible for ensuring that DND was fulfilling its obligation to consult with First Nations. From 2007 onwards, that responsibility fell to current Tory regional minister Vic Toews. Using the court's own analysis, the real problems began under Toews' watch. During this period, the DND simply swept aside the interests of First Nations and proceeded with a legally untenable plan.
And this brings us to a third scenario, in which Toews and the Conservative government deliberately ignored the legal claims of First Nations with full knowledge of what they were doing. It is hard to dismiss this scenario after reading the detailed chronology of the federal government's actions. In correspondence from Treasury Board, Ottawa clearly acknowledged First Nations had first shot at these lands. In that light, Ottawa's behaviour from 2006 on begins to take on a nefarious tone.
At the very least, this is a problem that should have been solved, a long time ago. But it was not, and now millions of dollars, and an incalculable amount of goodwill, have been wasted for what appears to be no good reason.
It's not the biggest file to sweep through this province, nor is it the biggest example of mindless government waste. What makes this story so maddening is the fact that a solution was, at all times, close at hand. It only took someone with the political maturity and basic sense of justice to reach out and do the right thing.
Take away all of the legalese and complex history, and what do you have? A story about an absence of political maturity, or a sense of justice. And a lot of waste for no good reason.