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KDFN takes YTG to court again

The Kwanlin Dun First Nation is taking the Yukon Party government to court for failing to live up to land claim agreements.

The Kwanlin Dun First Nation is taking the Yukon Party government to court for failing to live up to land claim agreements.

The First Nation is asking for a suspension of the public tender for the Whitehorse Airport terminal expansion project.

Kwanlin Dun would like a sole-source contract to manage the construction project with its joint venture partner Dominion Construction — something the First Nation argues it has a right to under land claim agreements.

Dominion and the First Nation are already assuming a similar role in the construction of the new correctional centre.

However, the government refused to award the airport contract to the First Nation and put it out for public tender instead.

The government and Highways and Public Works Minister Archie Lang are named in the court action.

The basis for the court case is a requirement under land claim agreements to create a construction agreement on any capital project worth more than $3 million on a First Nation’s traditional territory.

The government estimates that the airport project will cost $15.7 million.

The purpose of the Yukon Asset Construction Agreements is to strengthen the First Nation’s community, generate wealth and develop economic self-reliance, said Kwanlin Dun Heritage, Lands and Resources director Tom Beaudoin in a signed affidavit.

“Since the (Yukon Asset Construction Agreements) protocol was agreed to, there have been no (asset construction agreements) successfully concluded between (Kwanlin Dun) and YTG,” said Beaudoin.

Over the past three years, there have been several large capital projects in Kwanlin Dun traditional territory, according to court documents.

These projects include the Canada Winter Games athletes’ village, road reconstruction and upgrading projects and the Hamilton Boulevard extension.

However, the First Nation has been denied the opportunity to participate in any of these projects, said Beaudoin.

The Yukon Party government has told Kwanlin Dun that the Yukon Asset Construction Agreements provisions do not apply.

The First Nation disagrees.

“KDFN’s inability to participate in these projects is an ongoing source of frustration,” said Beaudoin.

The First Nation and territorial government participated in negotiations over two additional projects — the Whitehorse Copper subdivision and the Whitehorse Airport parking lot expansion.

In the Whitehorse Copper subdivision, the First Nation was promised job opportunities clearing, stripping and grubbing the land and cleaning up the old dump on the site.

Many of these promises have never been realized, said Beaudoin.

And a significant portion of the contracts has been clawed back by the government.

“In both cases, YTG did not satisfactorily implement the terms agreed to under those (agreements),” said Beaudoin.

“In short, to date the entire (Yukon Asset Construction Agreements) process has been both frustrating and disappointing.”

The airport terminal expansion seemed set to become another disappointing, missed opportunity for the First Nation.

In June, Kwanlin Dun met with Michael Cowper, the government’s senior manager on the project, said Beaudoin.

“Mr. Cowper’s preliminary indication to us about the project was that there would be minimal opportunity for benefits for Kwanlin Dun.”

The First Nation has asked the courts to treat the case as urgent because the government has already put the general contract on the project out to tender.

The deadline for bids is August 28.

If a public tender process is allowed to proceed, the First Nation argues that it will lose the opportunity to have meaningful participation in the project or obtain a beneficial construction agreement.

Kwanlin Dun and Dominion are still planning to submit a bid on the public tender.

Supreme Court Justice Leigh Gower granted the First Nation’s request for a speedy hearing Friday and ordered both parties to have their full documentation by Thursday.

A hearing has been set for Friday morning.

Kwanlin Dun and the Yukon government have been arguing a number of issues in court lately.

In July, the First Nation challenged the government’s public tender of two waterfront properties in downtown Whitehorse.

It asked for an injunction on the grounds that, by putting the lots up for public tender, Premier Dennis Fentie had violated earlier land agreements with both Ta’an Kwach’an and Kwanlin Dun First Nations.

The injunction was granted and a court hearing will be held on August 27 and 28.