Kapyong dealings egregious

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(DALE CUMMINGS )

The vacant land at Winnipeg's Kapyong Barracks has sat, in the minds of many who pass by the land on Route 90 daily, as a waste of opportunity, of good land, of lucrative property ripe for development in an affluent area. But that is only on the surface.

In reality, the 64.7 hectares vacated when the 2nd Battalion Princess Patricia's Canadian Light Infantry left for Shilo in 2004 is evidence that successive governments in Ottawa have failed to fulfil their duty to honour the deal made with First Nation people in treaties 140 years ago. A federal judge found last week that Ottawa's disreputable behaviour delayed the development there. Justice Roger T. Hughes overturned the government's transfer of the land to the Canada Lands Company and ordered Ottawa to negotiate with four Manitoba bands.

In 2001, the federal Liberal government announced it was moving 2 PPCLI out of Winnipeg. Almost immediately, Long Plain First Nation notified Ottawa it was interested in the barracks. Long Plain and many other bands had signed agreements with Ottawa years earlier to settle claims for land promised in 1871 under Treaty One but never given. The Brokenhead band joined in the pursuit of Kapyong.

But the federal government did very little to follow up, despite a duty under the agreements and via legal precedence to meaningfully consult with First Nations bands to uphold the honour of the Crown that signed treaties with native peoples. As bad as that was, Justice Hughes found that in 2006 and 2007, Ottawa's conduct was egregious. Five bands joined in the challenge by Long Plain and Brokenhead. The judge ruled last week that Long Plain and three others have an arguable, but not clear, claim to the land. (Brokenhead pulled out; two bands had not signed treaty land entitlement agreements).

There wasn't much by way of documentary evidence to back up the federal government's thinking in its handling of valid and persistent requests for consultations by the bands. The Harper government was not willing to release all documents about its discussions.

This is especially relevant regarding the decision in 2001 to exclude certain surplus Crown land from the priority consideration that was supposed to be given to bands with treaty land outstanding. Shortly after becoming aware in 2001 that Long Plain was interested in Kapyong, Ottawa penned a policy to consider surplus land as either "routine" or "strategic." Strategic land, either valuable or sensitive in nature, would not accord first-dibs consideration to First Nations.

One can only speculate that the Chrétien government had decided that good land should go to the open market for sale. The Harper government failed to right that wrong. In 2007, the government transferred the land to the Crown entity, Canada Lands, for sale, a transaction valued at the time at $8.6 million. The government perfunctorily informed the bands they now would have to deal with Canada Lands, which has no obligation to respect treaty entitlements and priority considerations of bands. There is a hint, however, of the attitudes floating among some involved in the Kapyong affair. A 2004 news article in the Winnipeg Free Press saying Long Plain was abandoning its claim was found in the federal files with the handwritten notation "well done" from one official to another.

The delay caused by a refusal to recognize obligations to First Nations has held up the sale of another 25 hectares where good housing sits and where the government has poured millions of dollars into maintenance.

This decision means Canada Lands no longer has control of the 67.4-hectare property, that talks which should have started in 2004 can finally get underway. The treaty entitlement agreements require a willing buyer-willing seller negotiation. By that measure alone, the federal government has failed not just the First Nations involved, but the honour of the Crown and therefore its duty to the whole country.

Republished from the Winnipeg Free Press print edition December 17, 2012 A10