Canada continues to fight against First Nation development in the courts

From WinnipegFreePress.com

Kapyong is a symbol of sabotage

By: Mary Agnes Welch - Posted: Jan 2, 2015

Kapyong Barracks lie mouldering along Kenaston Boulevard and Taylor Avenue. A court decision is expected soon.

PHIL HOSSACK / WINNIPEG FREE PRESS

Kapyong Barracks lie mouldering along Kenaston Boulevard and Taylor Avenue. A court decision is expected soon.

It's expected that federal judges will soon deliver their fourth in a tortuous series of rulings on the fate of Kapyong Barracks.

It's been a decade since soldiers vacated the old base on Kenaston Boulevard, and a year since several of the province's best-run First Nations repeated their pitch in court for a role in the barracks' redevelopment.

In many ways, the latest round may not make a tangible difference. As they have over and over in aboriginal rights cases across the country, the judges will probably side with Long Plain, Swan River, Peguis and Roseau River First Nations. Then, the federal government will probably appeal the case to the Supreme Court, which is where nearly everyone expects Kapyong to end up. That will take another three or four years. While we continue this futile courtroom saga, the most valuable piece of underdeveloped real estate in the province will lie fallow and we'll keep blindly wondering why indigenous people aren't living up to their economic potential.

Though Winnipeg made genuine progress on indigenous issues last year, Kapyong remains a symbol of all the ways we allow the federal government to continue sabotaging First Nations.

A year ago, there was chatter the feds would be willing to negotiate as long as the bands promised not to turn Kapyong into an urban reserve, a position that plays into all the lingering, racist assumptions about what an aboriginal urban economic development zone actually is. It's hard not to treat Ottawa's position cynically and assume an urban reserve would be fine if tucked away in Headingley, where Swan Lake First Nation already has a successful one. Demanding bands forgo the creation of an urban reserve means they would abandon some of their constitutionally protected treaty rights and benefits legislated by the Indian Act, the ones that give bands a chance at self-sufficiency. Sure, aboriginal rights matter, just not in Tuxedo.

It's important to remember Canada owes Manitoba First Nations thousands of hectares of land, hundred-year holdovers from treaty promises unkept. The four bands vying for a part of Kapyong were shorted, collectively, land double the size of present-day Winnipeg.

Historically, it's been Canada's habit to give First Nations the crappy land. Now, Canada is balking when First Nations demand the good stuff. Bands like Chemawawin were relocated to barren bedrock as soon as the government wanted to build a hydro dam. Corrupt federal agents coerced residents of the St. Peter's Indian settlement into abandoning fine land around Selkirk and relocating to flood-prone Peguis in 1907. Winnipeg's aqueduct forced Shoal Lake 40 to move off its traditional village and onto what became a man-made island. If Kapyong was in the remote north or next to marshy bogland or even on Pritchard Avenue, there would be no battle. Instead, it's in one of the wealthiest, most desirable neighbourhoods.

So, we're now entering Year Seven in a case one federal judge noted wryly has "an unhappy history."

The bands, six of them at the time, won in Federal Court in 2009, lost in the Federal Court of Appeal in 2011 and then won again when the case was sent back to Federal Court in 2012. In that decision, in plain-spoken fashion, Federal Court Justice Roger Hughes ruled four of the six bands have an arguable, though not proven, claim to Kapyong and Canada didn't consult properly with them before trying to sell off the 65-hectare parcel. Hughes found Canada had a "medium" duty to consult, somewhere between simply giving the bands a heads-up the barracks were for sale and offering them a chance to participate and influence the process.

The federal government appealed, again, and that's the decision we're waiting for now. It's likely Kapyong will be the latest in a long string of judgments, from the landmark Delgamuukw case that helped establish this vague and contentious "duty to consult" to the recent M├ętis land-rights ruling, that inch First Nations forward.

The courts are widely seen as the only effective way for First Nations to force Ottawa's hand, and indeed nearly every significant advancement in aboriginal rights has come through the courts. That is not a testament to the power of the law -- the process is so painfully slow and incremental and costly that it can hardly be seen as an agent of radical change. But, in an era where Ottawa has essentially refused to negotiate, the courts are all First Nations have.

All this is rendered more maddening when we imagine what Kapyong could be by now -- the model of a creative, pedestrian-friendly neighbourhood that simultaneously serves Winnipeg's desperate need for infill and buoys the renaissance we're seeing among indigenous people. It could be the place where good urban planning finally bridges the physical and social gap and in a city that suffers a degree of apartheid. It could be a partnership model between indigenous people and the Canada Lands Co., the Crown's surplus land developer that already has a reputation for excellent community consultation.

If six years ago the federal government had simply sat down, eyeball to eyeball, with the bands, we could be building at Kapyong now instead of driving every day past a desolate, boarded-up symbol of our failure to deal squarely with our history.

maryagnes.welch@freepress.mb.ca Twitter: @mawwelch

Republished from the Winnipeg Free Press print edition January 2, 2015 A9