The Vuntut Gwitchin First Nation has unwittingly become embroiled in a continuing land dispute between the Yukon government and the Ta’an Kwach’an First Nation.
On Wednesday, it was announced that the Vuntut Gwitchin had emerged as the successful bidder for two disputed lots along the Yukon River close to Ogilvie Street.
But it won’t be seeing the land, or its $600,000 deposit, until court proceedings between the Ta’an Kwach’an and the Yukon government have been resolved.
“We don’t take any position on this issue … we simply are interested in doing business, and these types of uncertainties really do not assist in developing a climate for business,” said Stephen Mills, president of the Vuntut Gwitchin Limited Partnership.
“I don’t think that any potential developer or landowner should get stuck in the crossfire between government and First Nations,” he added.
In a series of letters between Premier Dennis Fentie and the Ta’an Kwach’an from 2004 through 2007, the premier indicated that once the Canada Winter Games had wrapped up, he was open to discussing various “disposal options” for two plots of government-owned riverfront land close to Ogilvie Street.
However, before any discussion could take place, the government opened the lands to public tender on June 25, a move that the Ta’an Kwach’an asserts was a clear breach of the “honour of the Crown.”
The First Nation is now in court to seek an injunction to suspend the sale of the waterfront lots.
If an injunction is obtained, it may even jeopardize the Vuntut Gwitchin’s chances at obtaining alternative downtown land.
The First Nation claimed that as a result of monetary deposits tied up in bids for the riverfront land, it has been unable to bid on a series of other downtown lots that have been offered by the city of Whitehorse.
“Our money was frozen beyond the closing dates for the bids for those (city of Whitehorse) properties. It put us in a position not to bid on those lots, because we had a significant amount of money that was locked away in a safe,” said Mills.
Should the Ta’an Kwach’an obtain an injunction, the Vuntut Gwitchin have indicated that it would seek damages from the Yukon government.
The Yukon government, in turn, has claimed that they would refer these damages to the Ta’an Kwach’an.
In court proceedings on Wednesday, Roger Watt, lawyer for the Ta’an Kwach’an, reasserted that since all official statements made by Fentie are infused with the “honour of the Crown,” his decision to disregard a purchase meeting with the Ta’an Kwach’an was an unlawful breach of the government’s duty to aboriginal groups.
“The concept of the honour of the Crown infuses all of (the government’s) dealings with aboriginal peoples,” said Watt.
“The honour of the Crown is not engaged in this case because neither aboriginal or treaty rights are involved,” said Penelope Gawn, the lead defence for the government.
The government is asserting that the move to public tender was necessary to maintain the “public interest.”
Given that both the Kwanlin Dun and Ta’an Kwach’an had privately expressed interest in the land, “the fairest and most transparent option was to put theses lots up for public tender,” said Gawn.
“There’s a good deal of co-operation between Kwanlin Dun and Ta’an Kwach’an, so to suggest that the public interest demands a public tender is baseless,” said Watt in a rebuttal.
As well, Gawn alleged that charges by the Ta’an Kwach’an were an attack against the legitimacy of the public tender process.
“There is a public interest in maintaining the integrity of the tendering system,” said Gawn. The Vuntut Gwitchin and the Ta’an Kwach’an “were the only ones who submitted bids — if the bid is reopened they would likely be prejudiced.”
“If there’s been a jeopardization of the tender process, it’s because the tender process has been imposed prematurely in violation of the government’s obligations,” countered Watt.
In court it was also suggested that the Ta’an Kwach’an should have simply bid on then-available city of Whitehorse land rather than pursuing legal action towards the riverfront property.
“We don’t want to be on Second Ave., we want to be on the riverfront,” said Ta’an Kwach’an Chief Ruth Massie in comments outside the courtroom.
Watt asserted that the disputed land was unique in its proximity to existing Ta’an territory, its size, its waterfront status and its proximity to downtown.
Even if other downtown land could be obtained, failure to secure the two riverfront lots causes “irreparable” harm to the Ta’an Kwach’an, said Watt.
The First Nation has indicated that it wishes to use the lots for a commercial joint venture with the Kwanlin Dun. In court statements, Watt alluded to the possibility of a cultural centre.
The Vuntut Gwitchin First Nation plans to use the property “for a mix of residential and commercial space,” said Mills.
“We think it could be developed in such a way that it’s attractive and it fits in well with the waterfront.”
Justice Ron Veale will rule on the injunction on Monday at 4 p.m.