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The battle of Fort Ellice

St. Lazare wanted a heritage tourism site, but all it got was a big legal bill

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ST. LAZARE — Visiting this quaint village at the junction of the Assiniboine and Qu’Appelle valleys, near the Saskatchewan border, one might be tempted to pull out that old journalistic cliché about the quiet, "tightly knit" rural community.

The bullet holes in Marcel Fouillard's No Trespassing sign suggest otherwise. So did the envelope he received containing shell casings. So did the threat in the mail saying he would die by a certain date. So did the graffiti on the road in front of his house calling him "Pig" and other unmentionables.

"Everyone in town knows Marcel's an --hole," said one female resident in a brief exchange. I hadn't asked her about Fouillard. I'd asked about historic Fort Ellice, which turns out to be the cause of the turmoil.

About half St. Lazare's population has some Métis roots -- Louis Riel's wife, Marguerite Belhumeur, lived here before she married. Its other claim to fame is nearby historic site Fort Ellice, a large Hudson's Bay Co. fur trading post that was once the main trade and transportation hub between Fort Garry and Fort Edmonton in what is now Alberta.

A regular flow of oxcarts once traversed the 427-kilometre trail from Fort Garry to Fort Ellice. Steamships plied the Assiniboine River here. Aboriginal and Métis people settled around the fort for the economy it spawned. (Winnipeg's Ellice Avenue is named after the fort, which is named after Edward Ellice, a British investor in HBC.)




Hudson Bay Co. planted the seed for today's troubles back in 1925 when it insisted on selling its vacated fort into private hands. A farmer bought the fort site and, in 1955, sold it to cattle rancher Arthur Fouillard. Arthur, 89, still owns it but son Marcel manages the farm. The fort site is a cow pasture.

Attempts have been made over the years to purchase the land and place it in the public domain, without success. The thinking is it's an important historic site that should be preserved. There's also archaeological interest. Three ancient burial grounds surround it, including an aboriginal burial ground.

"I just can't understand why our fort isn't developed like other forts. It just sits there and gets trampled by cows," said Colombe (Fafard) Chartier, a local artist who painted a Fort Ellice diorama at the interpretive centre in town.

The most recent attempt to buy the land was started by the Village of St. Lazare and RM of Ellice in 2002. With the population in sharp decline--it fell by 80 from 2001 to 2006, to less than 700 people -- it was a last stab at attracting tourists and possibly creating some economic activity in the area.

A land sale couldn't be reached with the Fouillards but that didn't surprise anyone. The municipalities offered $100,000 for land appraised at $43,000. That price, Marcel said while giving a driving tour of the Fort Ellice site in his pickup truck, didn't include many things, including the historic importance of the site. It shouldn't just be valued as pasture any more, he said.

So in 2005, the municipalities, acting on their lawyer's advice, moved to expropriate the fort site.

The case became a small cause célèbre. Farm groups questioned the grounds by which a government could seize farm land. It was more the principle of the thing--fear of possible interference to a farming operation--than the land itself, which by all accounts is substandard pasture.

The Frontier Centre for Public Policy also got involved. The Frontier Centre objected to expropriating land for reasons of "economic development," pointing out that many American states have stopped allowing expropriations on those grounds. In fairness, the U.S. rulings came about because some local governments were expropriating land from small businesses to make way for big box stores like Walmart.

That was hardly the case with the impoverished municipalities around old Fort Ellice. And this was not a large-scale expropriation that required relocating residents like, for example, the creation of Birds Hill Provincial Park north of Winnipeg in the early 1960s.

Fouillard fought the expropriation in the Court of Queen's Bench, the Manitoba Court of Appeal, and all the way to the Supreme Court of Canada. It was costly--the municipalities, as the expropriating party, must pay legal costs for both sides--but when the Supreme Court refused to hear Fouillard's case, the municipalities had won. All that was left now was to go before the land value appraisal commission and decide on a fair price.

That's when things started to go haywire.

It was now early 2008. The municipalities expected fixing a value on the expropriated land would be a straightforward process. But there were unforeseen costs. For example, both sides had to have land appraisals which, in court cases, cost way more than your typical home appraisal. The appraisals cost about $20,000 each, so, because the expropriators must pay landowners' legal costs in an expropriation, it cost the municipalities almost $40,000, said Patrick Riley, from Taylor McCaffrey law firm, who acted for the municipalities.

Meantime, Fouillard and his lawyer kept raising new issues, the lawyers kept finding it hard to schedule meetings, and the costs kept rising.

Many of the demands from Fouillard and his lawyer seemed completely ridiculous to the municipalities. For example, a flat strip of land on the fort site where kids used to get plane rides 40 years ago for the town's annual Sports Day, suddenly became an air strip whose loss had to be factored into the property's value. If not, the municipalities could expect to rack up more legal fees as lawyers wrangled over it.

Or, a spring in the side of the cliff of the plateau that once filled a wading pool for the annual Sports Day, but hadn't been used since 1982, had to be replaced with newly dug well on the owner's unexpropriated property. Or so the Fouillard side demanded. A hydro line that the St. Lazare Athletics Association paid for but that had been inactive for 25 years, had to be extended to a desirable site on the unexpropriated land, Fouillard's side claimed.

(Many years ago, the Fouillards used to let the community hold its annual sports day and picnic on the Fort Ellice site one day a year.)

Fouillard also wanted night time security at the fort site. He wanted the road to the fort site and his farmstead raised to provincial standards and he charged the municipality for quotes with that objective. None of the municipal roads in the community are built to provincial standards. He claimed loss of the pasture would cost his cattle operation $14,000 per year, a figure disputed by farmers on the local council.

More plausible-sounding arguments were that putting a park in the middle of his family's remaining 3,200 acres might reduce the value of the unexpropriated land. Another argument was that the edge of the expropriated land looked out over his parents' farm home, invading their privacy. The municipalities say they offered to fence that portion away from the plateau's edge but Fouillard refused because he insisted the fence should be on the property line.

And on it went, back and forth on more niggling issues than most of us care to know about. And if you forgot a detail or got one slightly wrong, the other side was quick to jump on you.

Fouillard and his lawyer, Antoine Hacault, a specialist in expropriation law at Thompson Dorfman Sweatman law firm, maintained the municipalities made a big mistake by trying to obtain such a large parcel, 288 acres. Fouillard initially offered to lease the municipalities 90 acres, and later offered to sell it. That would have encompassed the fort site and then some.

There is some dispute about whether he really offered to sell the 90 acres. The municipalities say he only offered to lease 90 acres, and, if that was the case, they wouldn't be able to get grants on leased land.

But Hacault says the sale offer is contained in the transcript of a hearing before an independent inquiry commission the parties agreed to. The inquiry commission also recommended the municipalities settle for 90 acres. (The commission alone cost the municipalities nearly $50,000, according to Fouillard.)

The municipalities maintain they wanted the entire plateau around the fort so visitors could appreciate the sightlines overlooking the Assiniboine Valley--the reason the fort was built on that location--and witness the plains where thousands of buffalo once roamed and provided meat for fort dwellers.

Last August, the municipalities agreed to scale down their expropriation to 188 acres. But the money meter was ticking. For example, just the appraisal process alone to that point had cost more than $100,000, Riley said--already way more than the $43,000 the property was initially appraised at. (The last appraisal estimated the property's value at $79,000.)

Finally, Riley told the municipalities the dispute over the appraised value could go on for another two years or longer. Their legal bill was already at a staggering $380,000. For the roughly 300 or so homeowners in the municipalities, that works out to about $1,300 per home. Riley recommended they throw in the towel.

Part of the problem with the valuation process in an expropriation is there's no time limit, the municipalities say. With the expropriating party having to pay legal fees for both sides, there's no incentive to end the process. They maintain Fouillard's side kept coming up with new points, delaying the process further, and running up costs.

As Guy Huberdeau, reeve of the RM of Ellice, put it: "The way the system is, they can delay this until hell freezes over."

Said Riley: "At one point I said, 'We're winning all the battles but are we going to win the war?' That's what bothers me about this process."

Riley thinks there should be a rule, like in civil courts, that if the party being expropriated refuses a reasonable offer to settle, and does worse than that offer after all the legal processes, then that party has to pay legal costs for both sides.

Naturally, Hacault has a different view. He says the municipalities were playing with fire when they got into expropriating.

Hacault handles expropriation cases from both sides, the side of the expropriator and the party being expropriated, and teaches expropriation law at University of Manitoba. He said parties tend to run into a lot of unexpected costs when expropriating farms or businesses.

"I expressed my view at the very outset that the acquisition would cost a lot more than the municipalities were estimating. I'm an expert in this field and when someone gets expropriated, they're entitled to be put in the same position as they were before the expropriation. For the municipalities, that doesn't mean just paying for the chunk of land."

His price? He estimated they would have to pay over half a million dollars to buy the former Fort Ellice site. He says he warned the other side. "I always told the other side that from the outset," Hacault said.

With legal costs added, that would have brought the total acquisition cost at close to $1 million. That's for a property originally appraised at $43,000.

No one on the expropriating side, including lawyer Riley, recalls Hacault warning them that the acquisition price would be so high. "The estimate our lawyer said was six months and $150,000 maximum....That included the (land) purchase price," said Huberdeau.

Hacault maintains the municipalities were ill-prepared to take over the fort site, pointing out that municipalities had no business plan for the site. Fouillard doubted the municipalities could make much of an economic case for the site anyway. "Do you really think people would come out here?" Fouillard asked me.

Fouillard insisted his family has been a good steward of the fort site. His father and uncles planned to rebuild Fort Ellice in the 1960s. They obtained logs for the construction but they didn't carry through because they couldn't get government help, Marcel said. But another reason, he said, was that his father and uncles visited curators at Fort Edmonton and Fort Garry who told them they needed a big population centre nearby to support tourism.

The family also allowed the community to hold its annual sports day there for many years. There was even a baseball diamond and grandstand built by the community. There were other events held there without the family's consent, like year-end picnics. But insurers warned the family it could be sued if someone got hurt, said Marcel. In 1982, the No Trespassing sign went up over the land and trail leading to Fort Ellice site.

That didn't sit well with people, said Marcel, but he maintained that people could still visit the site by phoning the number on the bottom of the sign and asking permission. Marcel said he lets many people visit the site each year.

Local people bristle at Fouillard's version of events. They say the family let the community use the land only one day a year. As for the timber the family obtained to rebuild a fort, much of that came from a government make-work project for unemployed men. The province, locals say, refused to help build the fort because the Fouillards wouldn't give up control of the site.

Council officials like Huberdeau also dispute Fouillard's claim that he lets people visit the site. He may let outsiders visit--if they can find it, as there are no signs--but few locals have seen the site in years, Huberdeau maintained.

As for a business plan, all the municipalities planned to do was have some interpretive walking trails, with signage; some posts to indicate the fort's outline; and pedestals with plaques to point out various building locations, like the chief factor's house. Visitors would also be directed back to St. Lazare to visit the existing interpretive site. They planned to heed advice from provincial heritage and tourism officials to stay away from building infrastructure.

It's no different than how countless other rural jurisdictions go about preserving their heritage sites and creating tourist attractions, said Huberdeau. A historic Fort Ellice site just south of Asessippi Ski Resort could compliment the area's efforts to become a year round tourist destination, along with stops like the Inglis grain elevator heritage site.

It may very well be that the mistake the municipalities made was wanting too large a parcel of land and subsequently, too good of a tourist site, as Fouillard and his lawyer claim. However, the province also tried to buy the land from 1974-80, on land deals ranging from 300 to 700 acres, without being able to negotiate a deal.

This fall, the municipalities announced they were giving up the expropriation because they could no longer afford it. "We spent a pile of money for nothing," said Huberdeau.

But even knowing what they know now, the councils would do it over again, Huberdeau said. "At least in future they can't say their two councils never tried to do anything to better our community."

As for the death threat on Marcel--a handwritten note sent more than 18 months ago--it's not as if St. Lazare has turned into Dodge City.

Fouillard said he reported the incident to the RCMP but there hasn't been an arrest. Fouillard believes he knows who the individual is, and named that person in the interview. The person, when approached by the Free Press, denied it.

Republished from the Winnipeg Free Press print edition January 30, 2010 H1

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