Appeals court says proper consultation, accommodation required

On Aug. 14, the Federal
Court of Appeal agreed that the federal government failed to meet its duty to
consult with Treaty 1 First Nations in transferring the Kapyong Barracks
(located in Winnipeg) to the Canada Lands Company. The Court of Appeal also
made a number of observations on how the Crown should conduct itself in
discussions with First Nations on their preferences for meeting the Crown’s
long-neglected treaty land entitlement obligations. The Court said that treaty
land entitlement agreements must be seen in their proper historical context and
Canada must show a genuine intention and commitment “to engage in a process to
rectify Canada’s broken promise in Treaty No. 1.” In January 2008, seven First
Nations of Treaty One filed an application to have the federal court review
Ottawa’s 2005 decision to transfer the vacant Kapyong Barracks land to the
Canada Lands Company, which was to market it for redevelopment. Canada informed
the First Nations that the lands were not considered eligible for meeting these
obligations (because of a federal policy decision). The federal court ruled in
the First Nations’ favour in 2009 and 2012, but the federal government appealed
both the decisions and lost.