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Kapyong Knockdown

Disclosure: the author was 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 suing over Kapyong) and held community sessions in Roseau River, Brokenhead, Long Plain and Rolling River. Thus explains my continuing interest.?

So it appears that a settlement is finally in-the-offing between Treaty 1, Manitoba and Canada respecting the future ownership of the Kapyong Barracks; now the most litigated property in modern municipal legal annals with no less than 4 rulings, over 7 years, involving 8 superior court judges. And what a relief when Prime Minister Harper finally threw-in-the-towel during a campaign whistle-stop in Winnipeg. By this time, Kapyong had become the biggest real estate 'knockdown' in the country.

In previous articles I explained how it is that everybody loses in this litigation fiasco.

The barracks have become an accountant's nightmare due to its undeniable status as a wasting asset; an assessor's nightmare due to its lost prime-land tax generation capacity; a municipal planner's nightmare due to its frozen-in-time legal status; and a political nightmare given that litigators have been calling-the-shots for a decade.

During the course of this epic battle the country has witnessed: the birth of Idle No More, the fracking blowout at Rexton, the Freedom Train to Enbridge's AGM, the defeat of Northern Gateway at the hands of natives, the full-on arrival of UNDRIP, and of course the impact of the Truth and Reconciliation Commission findings. Closer to home, Manitoba has witnessed the rise of M?tis empowerment on the prairies and the completion of the iconic Human Rights Museum at the Forks.

Yet in the eye of this native empowerment hurricane, spanning the entire decade, is the Kapyong Barracks legal train-wreck; it's the one constant in understanding the native legal winning streak. Usually, those resource wins take place somewhere out in the boondocks where the impacts are of little consequence to life in the big city.

The over-arching concern (unstated of course) is whether this very urban piece of federal crown surplus property could or should ever end up in the hands of natives; (to repeat) who are litigating to have it turned over to them in satisfaction of crown land owing under their established and proven Treaty Land Entitlement settlement. Only now, the urban impacts are very real: high land values, proximity to tidy neighborhoods, transit plan priorities, tax base, and urban-reserve optics (!)?

The author has tracked the rise of native empowerment nationwide and produced a book documenting the native legal winning streak in the Canadian resources sector; which as of today is trending at 239 legal wins, with five major decisions pending before the Supreme Court of Canada, that will likely issue later this year.?

Kapyong Barracks qualifies for tracking purposes given its strategic land-use and commercial situation. Just because mainstream media has systematically dropped-the-ball by ignoring their legal winning streak doesn't mean that natives aren't busy redrawing the map of Canada one ruling at a time; and since they've already remapped the boondocks, why wouldn't they remap downtown Winnipeg??

Going to court is always a roll of the dice. Kapyong Barracks have rolled the dice so many times, because this litigation has been going on for years, up down the legal system. One judge (2012) started his ruling by quoting an earlier judge (2009) in stating "This litigation has an unhappy history". That makes two judges setting the same contextual tone three years apart covering the span 2006 to 2015. In fact one judgment contained a 2-page spread entitled the ?History of this Litigation? as a roadmap for the uninitiated. But of all the judicial paragraphs that I have to choose from in this legal soap-opera, this is the one worth reading (from the final decision):?

[137] Examining the record myself, I see no particular animus on the part of Canada. Instead, fairly read, the record shows a repeated lack of understanding on the part of Canada about the nature and scope of the duty to consult in the particularly unusual circumstances of this case. At the time the events of this case took place, the case law on the nature and scope of the duty to consult was embryonic. Canada first approved the transfer of the Barracks property to the Canada Lands Company in 2005 just after the Supreme Court released its seminal but very general decision in Haida Nation. After approving the transfer, Canada acted consistently with that approval, reluctant to alter its course. As these reasons suggest, it should have altered its course. But that sort of inertia is not enough to warrant the use of the term 'egregious.' I also note Canada?s concession before the Federal Court, albeit belated, that it does have a duty to consult. I also note that although Canada could have tried to transfer the Barracks property at any time after 2005, it did not do so. We are not dealing with an intransigent, defiant party. Canada v. Long Plain First Nation, 2015 FCA 177 (CanLII) (authors underlining).

And so the ship-of-state sails on.?

I'll leave it to the reader to access the true bona-fides of the parties involved. Could Canada's conduct 'earn' a judicial-pass because the courts are hoping to see some reconciliation and don't want to jinx this outcome? It sure looks that way. It's going to take some serious reconciliation on behalf of all involved to turn this knock-down around. What a way to run a country, a
province, a city...

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