April 8, 2009
By Bill Jackson - The Regional
A court order handed down last Friday restrains natives from protesting or interfering with a Main Street townhouse development in Hagersville and allows the developer to use reasonable force to remove protesters from the site.
The decision issued by Superior Court Justice J. Henderson also orders the OPP to assist the Sheriff of Haldimand county in the enforcement of the order.
Following several native protests last year, John Voortman and Associated asked for an interlocutory injunction to restrain members of the Haudenosaunee Men's Fire and its agents from obstructing development on the property that was purchased back in 2001. Their request was granted last Friday.
"We hope that the order is obeyed, "Hys obviously," said Michael Bordin, Voortman's lawyer.
The Men's Fire has threatened to continue their tactics of intimidation and criminal and civil disobedience, according to Henderson's decision.
"Their actions have interfered with the property rights of Voortman and can be characterized as nuisance, trespass, extortion, intimidation and inducing breach of contract."
The Men's Fire has a choice, he noted.
"The rule of law means that the HMF will be required to obey any court order, just as any person in Canada would be required to obey a court order. The assertion of an aboriginal right does not permit any person, aboriginal or otherwise, to break the law."
The order sets out that the plaintiff and its contractors may use reasonable force to prevent any person, barricade, vehicle or other property from interfering with the development as long as they use no more force than is necessary in the circumstances.
"I don't think anybody wants that, but I think that if the OPP do what they should do then it shouldn't become an issue," Bordin said.
Nothwithstanding any municipal bylaw, the plaintiff may also build a temporary fence no more than 12-feet high along the entire edge of the outside of the property and may place barbed wire at the top.
Henderson ruled that Voortman had a "strong case" as the registered landowner and that the Men's Fire case was "limited."
"In my view the (Haudenosaunee Men's Fire) is not well defined and its authority to represent aboriginal people is not well established," he wrote.
"The claim of the Six Nations is only with respect to damages, not with respect to the land. The appropriate remedy for the Six Nations people is to make a claim for damages against the Crown, and that has already been done."
The decision should assure other landowners that Crown patent is valid, Bordin said.
"There's got to be something pretty unique that would take title away from good faith purchasers."