First Nations Voice

SEPTEMBER 2015 • PAGE 3 T hus there was little surprise for this lawyer in this latest Kapyong ruling. All told the rulings completely fill a large binder; this being the 4th installment, as to whether Canada properly engaged with local First Nations when it decided to put the barracks property on the block. That's four rulings since the base closed in 2001. Canada's engagement with First Nations over what to do with the barracks didn't get off on the right foot: "… This was an empty invitation - Long Plain had been given no information about the Barracks property, no appraisals, no environmental assessments, no photos. At this time, Long Plain was not even invited to view the property." (par 47) And during the extended litigation phase, things didn't appear to be improving: "Having been told little about Canada's plans for the Barracks property, the respondents were driven during the litigation to pursue access to information requests to find out what had happened behind the scenes. Broadly speaking, that information showed a measure of confusion among various departments and ministries of Canada concerning the proper process to follow concerning the sale of the Barracks property. (par 70) But in this latest ruling, the court said fair play is what's needed, having found that: "… Canada had focused too much upon a technical non- purposive interpretation of the terms …" (par 116) " … Canada must act like the willing seller contemplated in the treaty land entitlement agreements. It must make its intentions concerning its property known to parties which, to its knowledge, have an interest in acquiring the property, provide them relevant information, give them the opportunity to make their intentions known, and consider their proposals carefully … Canada is under no obligation to convey the lands. But the process Canada must follow is more involved than it urges upon us. (par 117) "Agreements such as these are not to be interpreted like commercial contracts. Instead, they must be interpreted in accordance with the objectives of honourable conduct, reconciliation and fair dealing with Aboriginal peoples …" (para 118) With these quotes from the Federal Court of Appeal fresh in our mind, it's clear that dealing with the disposition of the Kapyong Barracks is not legal rocket science. Rather it's a fairly straightforward process that anybody who has dealt with real property would assume to be how business should be conducted. Why it became so convoluted in this instance can only be attributed to the fact that - lo - there's an issue with natives ending up with a piece of it - even if there's a clear legal obligation owing to them on topping up their treaty lands from a century ago. The fact that this relatively straightforward exercise has now been before 8 Federal Court judges has to have something to do with Ottawa's penchant for kicking the can down the road when it comes to litigating natives. In 2013-2014 Canada's federal government racked up $105.8 million in legal fees. Ask yourself if this money might be better spent cleaning up, instead of tying-up, what is now undeniably a major eyesore and a wasting commercial asset. The ruling concludes with this sentence: "As for Canada, it now has the guidance given by these reasons". (par 163) But given the litigious history, the question this conclusion begs is: Does Canada now have the goodwill? If the can is going to be kicked down the road once again (appeal to the Supreme Court of Canada is a possibility) just make sure to kick in the direction of The Forks. kapyong Ruling #4 Bill Gallagher Strategist-lawyer-author: Resource Rulers: Fortune and Folly on Canada's Road to Resources Bill Gallagher commentary for First Nations Voice Disclosure: the author was the federal negotiator sent to Treaty 1 to conclude Treaty Land Entitlement (TLE) negotiations in the aftermath of the Long Plain v. Southport blockade. I negotiated with many First Nations litigants (now winners at Kapyong) and held community sessions in Roseau River, Brokenhead, Long Plain, and Rolling River. The fact that TLE has taken so long to implement now needs to be addressed. There was little surprise for this lawyer in this latest Kapyong ruling. All told the rulings completely fill a large binder; this being the 4th installment, as to whether Canada properly engaged with local First Nations when it decided to put the barracks property on the block. That's four rulings since the base closed in 2001. " … Canada must act like the willing seller contemplated in the treaty land entitlement agreements.

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