Deal sees airport work cleared for takeoff

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The $16-million Whitehorse airport expansion project is back on track, following a deal between the Yukon government and the Kwanlin Dun First Nation.

Kwanlin Dun Chief Mike Smith and deputy minister Mike Johnson of the Department of Highways and Public Works signed an agreement a week ago to ensure participation in the project by Kwanlin Dun.

The first nation halted the expansion late last summer after the government issued a tender for construction bids without an arrangement in place.

“This is a commitment to involve us,” the chief said in an interview Wednesday of the agreement.

“The general contractor will hire a person to be a liaison and assist with the hiring of Kwanlin Dun people and assist and provide real opportunities to provide goods and services.”

Smith said in the negotiations since the Yukon Supreme Court imposed an injunction on the tender process last September, the first nation has made concessions, and so has the Yukon government.

Neither side came away with exactly what they wanted, but they did come away with “an agreement that both sides can live with,” said the chief, a lawyer by trade.

Earlier this fall at a local business conference, Rod Taylor, chair of the Tourism Industry Association of the Yukon, said it was imperative the airport expansion got back underway as quickly as possible.

“I have no idea how it is going to get resolved,” he told participants attending Opportunities North ‘08. “But we need to resolve it because the consequences of not resolving it are catastrophic for industry.”

Smith said the Yukon Asset Construction Agreement commits the government to ensure the general contractor selected for the job is aware of the obligation to make best efforts to involve the first nation.

Included in Kwanlin Dun’s land claim agreement is the provision to provide opportunities for the first nation in any Yukon government project worth more than $3 million, which is occurring on Kwanlin Dun’s traditional territory.

Records of correspondence filed with the court indicated both sides were talking about negotiating the agreement early last spring. At one point, correspondence from the Yukon government suggested there would be little opportunity for the first nation because of the expansion project’s complexity.

At the other end of the spectrum, the first nation suggested the government should consider sole-sourcing the general contractor job to Kwanlin Dun and its new partner in business, Dominion Construction, a large player in western Canada.

The government did propose an agreement, but, as Smith put it, the paper it was written on and 50 cents wouldn’t have bought a cup of coffee.

He said Kwanlin Dun had no choice but take the Yukon to court and force it back to the negotiating table.

A court date to hear arguments on the claim the government failed to fulfill its obligation under the land claim settlement was set for later this month.

It’s commonplace across Canada for territorial and provincial governments to explore the strength and breadth of aboriginal rights and treaty obligations in the high courts.

The chief doesn’t know if Premier Dennis Fentie or any members of his cabinet were involved in the decision to proceed with the airport tender process without an asset construction agreement with the first nation.

He does suspect some misunderstanding of the Kwanlin Dun agreement by the Yukon government bureaucracy did play into the decision.

The bureaucracy, he said, have all been weaned on the provisions and obligations set out in the first four land claim agreements signed in 1995.

Smith said the 2005 Kwanlin Dun agreement is different because it has an urban context, unlike the first four. An obligation to negotiate the asset construction agreement - which is included in only three of the 11 Yukon treaties to date - is a major difference, he said.

The chief said the obligation, with a lifespan of 12 years, is meant to provide training, develop skills and build capacity among first nation members so that at the end of 12 years, the first nation will be in a position to bid on jobs without the assistance.

While it was not Kwanlin Dun’s preference to take the government to court over the airport project, but with such a large economic development opportunity, it could not afford to let the government ignore its land claim obligation.

Smith said the first nation has a good, co-operative relationship with different government departments. Now that the parties have signed off on their first construction agreement, he hopes to establish that same relationship with the government’s economic development wing.

“Kwanlin Dun’s objective is to have meaningful, co-operative negotiations with the government,” said the chief. “You can’t do that in court.”

Fentie declined this morning to say whether he or his cabinet colleagues were involved in the decision to move ahead with the airport tender without an agreement with Kwanlin Dun.

And the deputy minister declined to discuss details about what prompted the government’s decision to proceed without an agreement, other than to note there was an offer to the first nation on the table, and timing was an issue.

It was the desire to have a general contractor in place as quickly as possible so concrete could be poured before the snow flew, Johnson said.

He said the asset construction agreement signed last week is the first of its kind. It will likely lead the way for future agreements for projects like the Arkell subdivision expansion, and the new correctional centre.

“The good thing about this is we have one resolved,” he said.

Johnson said there’s also a recognition now about the importance of concluding the asset construction agreements well in advance of a project.

Both the Yukon and Kwanlin Dun governments believe the agreement fulfills its intent of providing opportunity and building capacity, Johnson added.

As result of the court challenge, the tender process was cancelled last September.

Johnson said a new tender will be out in the first week of January, and will close in February.

While the court challenge did delay the project, it could actually result in savings, now that commodity prices have fallen, he said.

“They will be able to break ground next April, and we can be closed to the weather next fall, and work through the winter and have an opening in the following fall, which would be 2010,” he said.

Smith said Dominion Construction will indeed be bidding on the airport expansion job.