Court's decision for Brantford has implications for Haldimand

by Gary McHale - The Regional

November 24, 2010

Last week Superior Court Justice J. Arrell did more than just uphold the City of Brantford's injunction against Native Protesters, he issued a final blow to any further attempts by Six Nations or Haudenosaunee Development Institute (HDI) to extort money from developers. Justice Arrell ruled:

"This Court further orders that the respondents, their agents and any person having notice of this order are to cease and desist, until further order of this court, from either directly or indirectly requesting or demanding any type of fee, levy, charge or application as a condition of the use or development of land or any development/construction-related activities in the City of Brantford."

This court order is limited to the City of Brantford and has no effect upon any occupations or demands for fees within Haldimand County but it does provide the proof that local councils are not helpless. The City had passed two by-laws. The first by-law # 63-2008 prohibits interference with development, construction and access to property. The second by-law # 64-2008 prohibits the collection of fees by any organization, other than the City, Province or Federal Government as a condition of approval for development within the City.

Brantford passed these by-laws and sought an injunction against further occupations. The court action was brought against the very same people involved in Caledonia:

"Ruby Montour, Floyd Montour, Clive Garlow, Charlie Green, Mary Green, David Martin, Hazel Hill, Aaron Detlor and the Haudenosaunee Development Institute, Jane Doe, John Doe and Persons Unknown"

The court also ordered these same people to "cease and desist from in any way, directly or indirectly, threatening or intimidating any workers at any development or construction site in the City of Brantford."

The judge in the ruling made the following statements:

"It is an actionable tort for a group to combine together to employ unlawful means directed at another in circumstances where they should have known that harm would be suffered as a result of their conduct."

"The respondents argue that the granting of an injunction would result in irreparable harm to the Haudenosaunee Six Nations people by destroying the rights and interests in land which they are trying to protect... [Judge states] The City is not seeking to prohibit protest or assertion of rights. It is not seeking a "protest free zone". It is however, seeking to prohibit unlawful activity which includes violence, threats, intimidation, the prevention of access to property on city streets and the collection of illegal fees and tariffs by unauthorized individuals. In my view the City will suffer irreparable harm, if that has not already occurred, if this situation is allowed to continue..."

"This court is bound to come to some preliminary conclusions regarding the land claims because the test as to the degree of consultation and accommodation required is dependent on that finding... I have reviewed at length the evidence presented in this case regarding an alleged surrender of lands by the Six Nations people. In particular I have reviewed the treaties, minutes, documents and letters confirming agreements in various subsequent meetings of the Six Nations and the Crown. I have also reviewed the resumes, reports and cross-examinations of the two admitted experts Darlene Johnston and Joan Holmes. I prefer the opinion of Ms. Holmes. Her report was thorough, logical and referenced historical documents between 1844 and 1850. Many of these were not reviewed by Ms. Johnston..."

"The City of Brantford was established within the lands described by Ms. Holmes. That is, within the lands that she opines the Six Nations agreed to surrender for sale and were indeed sold... I conclude by way of my preliminary assessment, that the claim for title, or the return of these lands to the respondents, is exceedingly weak...."

"I further conclude that should I be in error on my assessment of the current evidence regarding the return of title to the disputed land such return would also be barred by laches [meaning: a failure to do something at the proper time, esp. such delay as will bar a party from bringing a legal proceeding] and the equitable doctrine of bona fide purchaser for value without notice. For more than 150 years the Six Nations did nothing to indicate to innocent third-party purchasers that there was any problem with title to their lands. Property has been bought and sold over the time period."

"Regarding Rights Under the Charter Violated: ... The respondents urge me to find the by-laws violate various rights under the Charter. In my view they do not prevent freedom of expression, freedom of assembly or freedom of association. A review of these by-laws, as a whole, clearly indicates they are prohibiting conduct that involves the obstruction of public rights of way, the intimidation of workers, the creation of nuisances, trespass and damaging private property. Prohibiting such conduct does not offend the Charter."

Where does this now put Haldimand County? Well, the ruling only applies to Brantford so will these same protesters be forced to target Haldimand County? Will Haldimand Council finally take any steps to take control of the situation or will they continue to repeat the propaganda that local council can do nothing?

One of the first acts Mayor Elect Ken Hewitt must do is to pass a by-law against non-government toll booths, a by-law against non-government fees to builders, and a bylaw against using illegal means to stop construction or the intimidation of workers. While this would be a smart move in support of the businesses in Haldimand Council there is little chance Mayor Hewitt will support such a move.

On Aug. 22, 2006 Mr. Hewitt, as the spokesperson of the Caledonia Citizen Alliance, released the following statement, "The Alliance has advised the Ontario Court of Appeal that the group supports the request of the Attorney General for a stay of the court injunction relating to the occupied lands in Caledonia."

Judge Marshall on Aug. 8, 2006 had given his final order to the OPP that the protesters were to be removed. The OPP and the McGuinty government wanted to do anything but to uphold the law. Mr. Hewitt and the Alliance sided with the McGuinty government and rejected Judge Marshall's ruling.

Haldimand is at a crossroads where it can decide to continue to do nothing or to follow Brantford's example and take control - only time will tell which road they will follow.