Canadian Lawyer InHouse

23 CANADIANLAWYERMAG.COM/INHOUSE MARCH 2016 No. 1, signed in 1871, which ceded most of the southern part of the province and all of Winnipeg to the federal government. The Kapyong Barracks property may currently be worth between $60 million and $90 million, depending on how it is de - veloped. "The Barracks property is unique and important. It is a large parcel of land in an urban area that is available for sale and could be redeveloped by the respondents," wrote Justice David Stratas, in a unanimous Federal Court of Appeal decision last fall, which upheld a lower court decision about the government's failure to consult. The lengthy dispute over the property began after the federal government desig - nated the property as "strategic" land and, in 2005, approved the sale of it to Canada Lands Company, a federal Crown corporation. First Nations that were interested in acquir- ing the land were not notified of the decision. In explaining the duty of consultation with First Nations, especially when treaty promises have been broken, the Federal Court of Appeal stated that this must not be interpreted in the way of commercial con - tracts. "Instead, they must be interpreted in accordance with the objectives of honour- able conduct, reconciliation and fair dealing with Aboriginal peoples," wrote Stratas, on behalf of the unanimous three-judge panel. There are also duties to provide First Na- tions with sufficient information to make informed decisions about whether it might want to purchase lands to which they have a claim, or an interest, the court said. "As well, Canada cannot contract out of its obli - gations to act honourably, to deal fairly and to consult with First Nations," wrote Stra- tas, in reference to the transfer of the land to an arms-length Crown corporation. The federal government did not seek leave to appeal this ruling and there are now talks about the future of the property. The decision is important in its findings about what is involved in consultation, says Har - ley Schachter, who acted for the Long Plain First Nation and Roseau River Anishinabe First Nation in the proceeding. "There must be a capacity to understand what is being of - fered," says Schachter, a partner at Duboff Edwards Haight & Schachter in Winnipeg. First Nations can be "inundated" with letters from governments about decisions involving Crown lands, but it does not mean they always have the resources to de - cide if it impacts their interests and rights, he explains. "This is where, in my view, the Crown has an obligation to understand the financial interests" of First Nations and to make this clear at the initial stage, says Schachter. He describes the process as a "patchwork quilt" in Manitoba, depending on which level of government is involved. Unlike the situation involving the Ka - pyong Barracks, the federal government took another approach with parcels of land in Van- couver and West Vancouver, which is some of the most lucrative real estate in the country. Canada Lands entered into a joint own- ership agreement in the fall of 2014 with a consortium of First Nations to determine what to do with the land, which could ulti- mately be worth billions of dollars. One of the parcels is known as the Jericho Lands, a 52-acre parcel in the Point Grey section of Vancouver and near the campus of the University of British Columbia. Residen - tial properties in the area can go for millions of dollars. For example, a 2,400-square-foot detached home on a crowded residential street south of the Jericho Garrison recently listed for $2.8 million. It may be several years before there is a disposition of the Jericho Lands, which have a military base and mostly park-like setting, but there is still controversy over what the provincial government intends to do with its section of the lands (which was not part of the 2014 agreement). David Eby, a lawyer and the New Demo - crat member of the legislature for Vancou- ver-Point Grey, has been pushing the pro- vincial government for more information about its intentions. "The first obligation is to talk to First Nations," says Eby, a former head of the B.C. Civil Liberties Association. "Once First Nations issues are addressed, there are broader obligations in my opinion. This is not simply a property you sell to close up a gap in the budget. Once it is sold, it is gone forever," Eby states. The deal between Canada Lands and First Nations related to its section of the Jericho Lands includes a commitment to a multi-year consultation with residents and the city before it is sold to a developer, Eby points out, which is what he says the prov - ince should be doing as well. Given the affordable housing crisis in Vancouver, the potential revenue from a sale of these lands must provide some lon- ger-term benefit, says Eby, who is also the NDP's provincial housing critic. The obli- gation on government to consult broadly be- fore any sale "is proportionate to the impact of the land to the community," Eby suggests. For its part, the B.C. government has said that it is consulting with First Nations, but the province's ultimate intention with its share of the land is still not known. The more lucrative or higher profile the government-owned land that is being sold, the more likely there will be increased scru - tiny and a need to ensure the broader pub- lic good is reflected in the transaction, says Jamie Klein. "People tend to look at these [public] lands with a keen eye. They feel they have a vested interest" in what happens with the property after there is a disposi - tion, he adds. As a result, for the public agency involved in the process, it is not simply a matter of seeking the most money for the land, says Traub. "This selection will not necessarily be the highest bidder, but the best purchaser for the property," he explains. "Govern - ments are so selective" and money is just one of the factors, he adds. Other factors include possible conditions on any sale so that the development is not out of place within the existing community, or provides some benefit that the current government is not able to provide as a result of budgetary restraints, says Traub. "There are always going to be differences of opin - ion. You have a political process. But you don't want to put yourself at risk," politically or otherwise, he says. IH

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