Hearing set for Friday on airport litigation

The Kwanlin Dun First Nation has filed another court action against the Yukon government, this time seeking a suspension of the public tender for the Whitehorse airport construction project.

The Kwanlin Dun First Nation has filed another court action against the Yukon government, this time seeking a suspension of the public tender for the Whitehorse airport construction project.

In documents filed Friday, the first nation claims the government breached the land claim agreement by failing to provide an opportunity for Kwanlin Dun to negotiate its participation in the construction of the airport terminal expansion.

The first nation is asking the Yukon Supreme Court for several orders, from outright cancellation of the public tender process to a suspension of the process until the parties can negotiate a participation agreement for the project.

Last Friday afternoon, Supreme Court Justice Leigh Gower granted the first nation’s request to expedite a hearing on the matter.

Gower ordered both the first nation and the government to submit their full documentation by Thursday, in preparation for a hearing scheduled for Friday morning.

Named in the court action is the government and Archie Lang, as Minister of Highways and Public Works.

The government issued a tender on July 25 for the construction of the two-storey terminal expansion. The deadline for submissions is Aug. 28.

Court documents indicate the government is estimating the cost of the project at $15.7 million.

In other documents already filed with the court, the first nation points out the land claim agreement stipulates the government must provide Kwanlin Dun with an opportunity to negotiate its participation in government projects on Kwanlin Dun traditional territory worth more than $3 million.

The government did not live up to that obligation, according to sworn statements provided to the court by senior Kwanlin Dun staff.

Statements indicate the process of negotiating participation agreements has been frustrating and disappointing for the first nation.

The sworn statements also indicate that as far back as March 2007, senior staff with the Department of Highways and Public Works notified the first nation that the airport terminal was a project eligible for a participation agreement between the parties.

This past spring, however, government staff indicated the terminal expansion would provide minimal opportunities for the first nation because of the complexity of the project, the sworn statements indicate.

There were, however, commitments from the government staff in a subsequent meeting that there was still an opportunity to negotiate some form of participation agreement, according to the court documents.

The sworn statements indicate the government even promised to provide a proposed draft of the agreement as a starting point for negotiations, though the draft nevear arrived.

In June, the partnership of Kwanlin Dun and Dominion Construction was awarded the contract for construction management of the new correctional facility.

Following that contract award, the first nation requested the Kwanlin Dun-Dominion Construction partnership be given an opportunity to submit a proposal - on a sole-source basis - to manage construction of the terminal expansion.

The first nation is also seeking a court order directing the government to provide Kwanlin Dun and Dominion with the opportunity to submit a sole-source construction management proposal before proceeding with the public tender process.

Court documents also indicate, however, that Kwanlin Dun and Dominion Construction still plan on bidding for the construction contract, without any prejudice to its legal challenge of the public tender process.

Dominion is one of the largest and oldest construction companies in western Canada.

As of late this morning, the government had yet to file any reply to the latest legal challenge.

Last month, Kwanlin Dun and the Ta’an Kwach’an Council filed a challenge in Yukon Supreme Court against the government’s public tender of two waterfront properties.

The first nations maintain Premier Dennis Fentie promised the first nations an opportunity to have first crack at buying the properties directly. They maintain that opportunity was never provided.

The court has frozen the sale of the properties, pending the outcome of a hearing scheduled for next week.