Judge demands to know why orders to end aboriginal occupation not followed

CAYUGA, Ont. (CP) - A Superior Court judge heard seven hours of legal arguments Monday after again demanding to know why his orders have been "blatantly disregarded" and aboriginal protesters continue to occupy land in Caledonia, Ont.

Six Nations protesters have occupied the Douglas Creek Estates housing development since the end of February, claiming it was wrongly taken from them by the Crown more than 200 years ago. Superior Court Justice David Marshall issued a court order in March to have the protesters removed by police and to have barricades lifted on nearby railway tracks.

Police did raid the occupied site on April 20, saying they feared for public safety as the dispute grew more heated. However, the officers retreated as more demonstrators arrived and they never attempted another raid.

Lawyers for the aboriginals, as well as the province and others, told Marshall on Monday that pursuing criminal contempt charges for not enforcing the court order would undermine negotiations to end the dispute and disrupt a fragile peace.

"It's not necessarily in the public good to proceed at this time," said Kenneth Peel, a lawyer for Railink Canada Ltd., the company whose tracks had been blocked.

"There is no fresh information which suggests there is a present and urgent need to intervene."

But Marshall said his orders have been ignored and the integrity of the court and rule of law are under attack.

"This is a matter at the very heart of the administration of justice," Marshall said in court.

"If court orders can be disregarded the whole fabric of democracy falls to pieces."

Lawyers for the Ministry of the Attorney General argued Marshall's orders have been carried out, noting police have laid 53 charges against 28 people.

And there's no evidence that authorities have neglected their duty in enforcing the law, argued Dennis Brown, lawyer for the attorney general.

Brown added that police need to balance their actions during the tense standoff.

"No one is suggesting people can break the law without any recourse," said Brown.

"(But) flexibility has to be built into everything."

Marshall had already expressed frustration several times that his removal order has not been followed, which prompted him to take the unusual step of calling representatives from the province, police and aboriginals into court to explain their actions.

For several months, negotiations have been underway between various levels of governments and aboriginals to find a way to resolve the dispute, but in the meantime, the Six Nations protesters remain on the land.

A court-appointed adviser told Marshall on Monday that allowing the contempt to go unaddressed could breed mass disobedience and undermine the authority of the court.

"Where disobeying a court order involves large numbers of people in a public way ... ensuring respect for the court is even more important," said Larry Elliot.

After hearing almost seven hours of legal arguments, Marshall said he would issue his decision on the contempt issue in due course.

"Nothing will be done quickly," he added, as a handful of aboriginal protesters held vigil outside the courthouse.

Earlier in the day, OPP Commissioner Gwen Boniface announced Ottawa police would investigate the actions of provincial police officers during an assault on two television camera operators at the protest scene.

The TV crew was filming the occupation on June 9 when one of them was swarmed, assaulted and had his equipment stolen.

The cameramen claim provincial police officers who witnessed the assault did nothing to stop it.