Hey there, time traveller!
This article was published 20/5/2009 (4022 days ago), so information in it may no longer be current.
WINNIPEG — Kapyong Barracks could be in legal limbo for months -- or even four more years -- now that a federal judge has sent First Nations lawyers back to the drawing board.
Ottawa's lawyers and Treaty 1 First Nations were prepared Wednesday to begin a judicial review to determine whether the federal government properly consulted the bands before handing over the old River Heights barracks to a Crown development firm.
City officials, developers and affordable-housing activists were hoping the hearing, and a decision expected in a few months, could clear the way for an innovative new neighbourhood to be built at Kapyong.
But in an unusual move, Federal Court Justice Douglas Campbell postponed the hearing and asked lawyers for the First Nations to answer some outstanding questions. Specifically, the judge wanted a written submission detailing just how the First Nations justify their claim to Kapyong based on past treaties and land entitlement deals. Campbell said that, in order to argue that they should have been consulted, the bands must establish their right to the land in the first place.
Crown lawyer Harry Glinter said the application for judicial review filed by the bands was confounding.
In a preview of his main argument, Glinter said the bands don't have real rights to Kapyong anyway. Under treaty land entitlement deals, bands can select surplus provincial property or buy surplus federal land. But the Treaty 1 First Nations want Kapyong for free, and moreover, it's not surplus. Instead, it's what's called "strategic" land that has a critical value to a community and must be handed over to the Canada Lands Co. for development instead of sold to the highest bidder.
Glinter said the bands have known about Ottawa's plans for Kapyong since 2001 and Ottawa made efforts to consult First Nations.
"They have done nothing to assert their claims," Ginter said. "Instead, they have basically sat on their rights until this point."
But outside the courtroom on Broadway, Treaty 1 lawyer Norm Boudreau said that's not the case. Anything the bands learned about Kapyong they learned from the newspaper, and Ottawa has consistently hidden behind cabinet secrecy rules to keep bands out of the loop.
The short hearing was a perfect primer on the time-consuming legal complexities that often confound native land claims or projects like Kapyong that run afoul of First Nations.
Earlier this month, a federal judge rejected a similar claim by Treaty 1 First Nations regarding a pipeline project in southern Manitoba.
Wednesday, the judge also threw in another wild card, suggesting the First Nations might want to transform their request for a judicial review into a real civil lawsuit that would involve expert witnesses, historical evidence and testimony to prove the bands have a legitimate claim to Kapyong.
That could take three or four years to work its way through the court, and Boudreau said he would spend the summer consulting his clients on the idea.
If Treaty 1 First Nations continue with the judicial review, lawyers are expected back in court for the hearing this fall, perhaps as early as September.
Treaty 1 First Nations, which are seven powerful bands, including Sagkeeng and Peguis, want some or all of Kapyong Barracks land so they can develop it into schools, housing and businesses and create an urban reserve and jobs for their poverty-stricken people.
The barracks, former home of the Princess Patricia's Canadian Light Infantry regiment, have been abandoned since 2004, when the regiment relocated to CFB Shilo east of Brandon.