Council has a duty residents protest

by Bill Jackson - The Regional

July 27, 2011

The former owner of the now defunct Piston Broke Smokes has decided to take on a different travelling business venture to highlight the failure of authorities who should be dealing with illegal smoke shacks and bylaw infractions.

Doug Fleming believes that "County Council has a duty to issue a cease and desist order" against the proprietors of a contraband tobacco shack at the south end of Argyle street. The shack, which has been in operation for over four years, is located on Hydro One property where a secondary structure has now been erected, rumoured to be a burger hut.

During a recent interview, Haldimand Mayor Ken Hewitt said that the municipality's hands are tied as 'a child of the province'. However, "Doing nothing is the easy answer," according to Fleming, who contacted Hewitt about the matter before organizing a public gathering outside the mayor's Caledonia home on Saturday morning at 10 a.m. where about a dozen people gathered on the street, respectful of trespassing laws.

Fleming said that he was "hoping for a rally, not a protest," and that the event wasn't meant to harass the mayor, but rather "to support him to take action."

Hewitt remained inside his home and left in his truck shortly after 10:30 a.m. without addressing the congregation that included two members of the media.

"The mayor does not want to deal with this," Flaming said. "This is what I was trying to establish."

Well-known activist Gary McHale noted that a Court of Appeal decision pertaining to the disputed Douglas Creek Estates property indicated that the province is obligated as a property owner to obey municipal by-laws.

"As a property owner it has the right to use its own land as it sees fit, as long as it complies with municipal by-laws and the laws concerning nuisance and public safety," the decision reads.

While municipal and provincial officials have repeatedly stated that they are working with all parties, including Six Nations, to come to a resolution, the same Court of Appeal decision also stated "negotiations are not a substitute for individual responsibility for criminal acts."

That decision was issued back in 2006. The Plank Road 1 smoke shop has been in operation since 2007.

"To ask council what it can do is a mistake," Fleming concluded. "You have to learn in advance and say 'Here's what you can do'. Council can't move heaven and earth, but we're asking them to do what they can."

One woman present said that council has no problem issuing orders against private property owners for weed maintenance and by-law compliance.

"What about Douglas Creek Estates?" she wonders.

A smoke shack erected on private property on Highway 6 was shut down by police in 2009 following court proceedings. Ernie Palmer was threatened by natives who placed an illegal smoke shack on his land. The town prosecuted Palmer for by-law infractions.

"Where there's a will there's a way," according to McHale, who questions whether the province or municipality are actually discussing the issues behind closed doors.

"How do we know if they're even talking? Are the meetings public?"

McHale believes that there are a number of ways to hold the purveyors of illegal tobacco and other products accountable.

"Not everything has to go through the McGuinty government."

Health inspectors could be summoned, but McHale says that it's unlikely that the mayor and council will take such action.

A smoke shack at the Fifth Line that was built on land being held in trust for the Six Nations Reserve was demolished earlier this year following a court order sought by Six Nations Band Council.

Ministry of Revenue officers have issued fines to purchasers of illegal tobacco products being sold along Highway 6.

Yet past enforcement efforts and flashing police lights weren't enough to deter some customers who came out to the Plank Road 1 shop last weekend while Fleming set up a makeshift "stop smoking clinic" at the main entrance. Although it's quite likely that his enterprise, and the attention it drew, thwarted some commerce.

About six or eight individuals sat outside the smoke shack and kept watch from afar. One of them who later drove away in a pick up truck make a point of spinning the wheels, throwing up dust.

But McHale noted that the show of support for the smoke shack was much less than in 2007 when a protest he organized was confronted by some 200 natives. McHale and others were assaulted in a melee that ensued.

McHale, who has been successful at having criminal charges laid against numerous public officials, said he's planning to press charges against the Hydro One Board of Directors for failing to discharge a legal duty by not taking steps to ensure their property is not being used for criminal purposes.

Fleming intends to return to the property to protest the smoke shack, admitting that his temporary structure that resembled an outhouse wouldn't last half of an evening if left on site.