Land sale controversy has impacted first nation

Photo by Whitehorse Star

Yukon Supreme Court Justice Ron Veale’s order to keep sealed the bids for the territorial government’s Whitehorse waterfront property has prevented the Vuntut Gwitchin Ltd. Partnership (owned by the Vuntut Gwitchin First Nation) from going after any city sites up for bid in the same area.

That’s the scenario outlined by Stephen Mills, the company’s president.

A letter from Mills to the government notes the impact the sealed bids have had on the Vuntut Gwitchin Ltd.  Partnership.

“I am writing to put you on notice that Vuntut Gwitchin Limited Partnership is now in danger of not only losing its opportunity to purchase from the Yukon Territorial Government, but has now been placed in jeopardy with respect to bid on land being sold by the City of Whitehorse,“ reads the letter.

“Vuntut Gwitchin Limited Partnership hereby puts you on notice that it will look to you for any damages suffered by it as a result of these developments.“

The letter is included as part of the documents in an affidavit filed Tuesday by the government’s lands branch manager,  Lyle Henderson.

Last week, Veale made the order preventing the sale of the two territorial properties until he could hear arguments in the case set for this afternoon.

Both Ta’an Kwachan Council deputy chief Gail Anderson and Kwanlin Dun First Nation Chief Mike Smith said Premier Dennis Fentie had committed to discussing purchase options for the two sites with local first nations.

In mid-June though, Ta’an Chief Ruth Massie received a phone call from Fentie, who stated the lots would be sold through a public tender process, it’s noted in an affidavit filed by Massie last Wednesday.

Unaware of any issues, Mills said from Vancouver this morning, the development corporation submitted a bid on the land.

It was one of two bids that were received, the other coming from the Ta’an. Each had submitted bids on both properties, states the affidavit.

While Mills didn’t want to go into detail on what was submitted in the bid, he said it’s hard to say what the company would have done had it known the concerns of the two Whitehorse-area first nations, but it would have been beneficial to know the issues before hand.

“We did put in a true bid,“ he said.

The bids required a deposit of 20 per cent, with minimum prices set at $561,000 for the 0.18-hectare lot between First and Second Avenues and $2.13 million for the 0.89-ha lot on the other side of First Avenue near Ogilvie Street.

“Basically, we saw it as an opportunity,“ Mills said of the waterfront land, noting the company has been involved with the development of many office structures and newer buildings in the city of late. The land is prime real estate for development, he commented.

With the bids remaining sealed, it’s meant the Vuntut Gwitchin Ltd. Partnership didn’t have the money available to then bid on the first five city waterfront lots that were becoming available. That tender closed a day after the bids for the territorial waterfront land were due, and none came into the city.

Mills didn’t want to get involved in the controversy around the territorial land, but noted the major impact for the company has been its inability to bid on the city lots.

“It would’ve been a very good opportunity to bid,“ he said.

The city has yet to move forward with the next step in selling its five lots, but officials have stated it could go to an over-the-counter type sale or, potentially, be sold through a real estate agent.

That raises the question of whether the properties will go for a larger or smaller price than the minimum bid requirements originally set out, Mills noted.

“We’ll definitely be looking at them seriously,“ he said, noting the Whitehorse market is good and the company is continuing to look at opportunities in the capital city.

In addition to Mills’ letter, Henderson’s affidavit includes numerous maps of the waterfront land, the tender documents, city documents regarding its sale and zoning and other paperwork. The affidavit itself is three pages, with Henderson outlining the events around the bidding process.

It notes that while the Lands Act doesn’t apply to the two Yukon government lots because they were held privately for so long, the government typically adheres to the “spirit and intent”  of the act.

Under section 3(2) of the act, the minister may dispose of land only by a public tender or after receiving an application.

“There are no regulations with respect to pricing commercial lots,“ reads the affidavit.

“Thus, in keeping with s. 13(2) of the Lands Act, it was determined that Lots 23 and 40 (the two sites) should be sold for not less than the appraised values.“

The city established June 17 as the date it would announce its first properties on the waterfront for sale.

“I decided it would be beneficial to co-ordinate the Government of Yukon and City tender deadlines,“ Henderson wrote in his affidavit.

The government tender then went on with the July 16 closing date, with the Ta’an filing its injunction on the same date and the bids then being sealed.

Two days after the tender closed, Henderson received the letter from the Vuntut Gwitchin Ltd. Partnership.

“In my opinion, the integrity of the commercial tendering process would be severely impacted if an injunction is granted because the current bidders were the only ones to organize and submit their bids within the time limitation,“ reads Henderson’s affidavit.

“If it is decided that another tender call is required, the current bidders would be prejudiced, as another tender will provide an opportunity for others to submit bids.

“The bidders are also prejudiced by having their deposits held in the interim. It is important, therefore, that the sealed bids be opened as soon as possible.“

In her earlier affidavit though, Massie points to the numerous phone calls she made that weren’t returned by Fentie nor the government.

On July 15, she states, a letter was sent outlining the first nation’s opposition to the tender.

“The harm that will be suffered if the tender proceeds is harm that cannot be adequately compensated in damages,“ reads Massie’s six-page affidavit. It’s accompanied by numerous documents, including the letters to and from the government since 2004.

“Once the tender is closed and the highest bidder accepted, TKC will lose its anticipated opportunity to discuss acquisition of the land. The objective of integrating the lands into the TKC’s overall long-term community development plan will be seriously compromised if the lands are disposed of by the Crown via the tender.“

It goes on to note the constitutionally protected consultation rights of first nations.

“TKC is seeking the preservation of the lands in their present state pending the hearing of the petition,“ it’s noted.

Massie notes she knows of no urgency to sell the lands quickly by tender and the integration of the properties into the first nation’s community development plan is in the public interest.

“It is important to community and cultural groups and is relevant to the overall development and improvement of the TKC’s future role in the Whitehorse community,“ Massie wrote.