Winnipeg Free Press - PRINT EDITION
No need to appeal Kapyong
A federal court judge has summarily dismissed the federal government's defence for not giving a couple of First Nation bands the chance to acquire the abandoned Kapyong Barracks property. The land is a developer's dream, but it is also encumbered by a Crown obligation to make good on a deal signed 138 years ago.
Two First Nations, Peguis and Brokenhead, have outstanding land entitlements from treaties signed at Lower Fort Garry in 1871 with treaty commissioners. The First Nations ceded traditional land in exchange for reserves, the size of which was based on a per capita formula. Not all bands got the land owed to them. "The aboriginal people kept their side of the bargain, but Canada did not. This fact is the single most important feature of the contemporary land dispute which is at the centre of the present application," Judge Douglas Campbell wrote this week.
The government insisted that in signing a treaty land entitlement agreement with Manitoba First Nations in 1998, it was freed from its obligation to negotiate when federal lands became surplus, and had no duty to consult with bands that might be interested in Kapyong land. Under treaty land entitlement agreements, Ottawa sets aside money so First Nations can purchase Crown land when it becomes available. Judge Campbell gave short shrift to the federal position, saying the agreements become the method by which Ottawa fulfills its treaty obligations. The duty to consult, and accommodate a settlement where possible, continues.
The land in question is some of the most valuable in Winnipeg, tucked in between River Heights and Tuxedo, along Kenaston Boulevard. Land in the area is growing scarce, with the development of Waverley West all sewn up. Its undeveloped value may require the two bands to hook up with partners -- their application to the court was made with five other southern Manitoba bands.
Treasury Board President Vic Toews, who in 2007 ordered the first parcel of the Kapyong land be sold to the federal Canada Lands Company, has not said as yet if the judgment will be appealed. He should think hard about that. Already the barracks -- minus the houses of the federal holdings -- has been tied up at considerable expense since 2004, when 2PPCLI moved out for Shilo. If the treaty commissioners had displayed such intransigence, settlement would have dragged out and development of Manitoba would have been delayed.
An appeal would amount to pleading a case that was dismissed with near derision by an experienced, respected jurist. Judge Campbell spent much of his 25-page decision recalling the weight of judicial opinion that has reminded Canadians and public office holders time and again that the Crown went willingly and with honour to treat with native people, who were being crowded out by the influx of Europeans.
The Crown recognized that it was in no one's interest to draw out a protracted battle; indeed, it would have been wrong and unnecessary. Mr. Toews should take a page from the lessons of history. The federal government would do Manitoba and Canada a service by consulting with and working to accommodate, as far as practicable, the interests of the Brokenhead and Peguis First Nations.
Republished from the Winnipeg Free Press print edition October 3, 2009 A18
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