JUDGE ORDERS NEGOTIATIONS to end; No talks until protesters leave occupied land, rules Marshall

KAREN BEST
Wednesday, August 09, 2006
The Chronicle

Judge David Marshall has ruled land claim negotiations between Canada, Ontario and Six Nations must stop until native protesters remove all barricades and leave the Caledonia subdivision they have occupied since Feb. 28.

Then negotiations should be pursued in earnest, he said.

At a hearing on Tuesday, the Ontario Superior Court of Justice judge said the court can assess a number of remedies binding on third parties, including governments. The court has jurisdiction to order suspension of negotiation until protesters clear off the site and the rule of law is restored, he said. He specifically stated police must begin to enforce law on the property.

At the end of February, several Six Nations residents moved into the subdivision that they say was never to be transferred from their ownership.

The 200-acre property is in the Haldimand Tract granted to Six Nations in 1784 for their loyalty to Britain in the American War of Independence.

As suggested by the OPP lawyer and the Attorneys General of Canada and Ontario at an earlier hearing, Marshall is transferring the issue of criminal contempt to the Ontario Attorney General. In March, the judge issued arrest warrants for contempt of court for individuals who did not leave the subdivision as ordered in an earlier injunction. No one has appealed his contempt of court orders.

In transferring the carriage of contempt to the Attorney General, Marshall pointed out a potential conflict of interest. The Attorney General which represents the Ontario government, is negotiating the future of the land that the province now owns. On June 5, the government purchased Henco Industries' interest in the Caledonia housing development.

Marshall suggested the Attorney General appoint a senior and experienced crown to pursue the issue of contempt. The judge also ordered this prosecutor to report on investigation and pursuit of charges in open court to keep both Haldimand County and Six Nations communities informed.

The original injunction granted to Henco will be dissolved once the contempt order is addressed.

After weighing advice from lawyers representing parties connected to the occupation, Marshall refused to walk away from his three month quest to return law to Caledonia. Rule of law is "arguably the preeminent condition of freedom and peace in a democratic society," he said in his opening comments.

He proceeded to describe the grant of six miles on either side of the Grand River to Six Nations. Over 200 years, much of this land was alienated from the natives and the justness of these land transfers is the background of the events leading to this litigation, he noted.

Marshall expressed understanding for native frustration due to the slow progress in land claim negotiations. He also listed various court actions in March. At the end of May, he called a hearing with OPP and Ontario and

Canadian Attorney Generals to find out why his orders were not upheld. It is common knowledge the law has not been enforced, he said.

In his ruling, Marshall also empathized with Caledonia where security and the future are both uncertain. Residents have seen protesters in battle fatigues and officers in riot gear. Property values have eroded and relationships with native neighbours have been destroyed after years of peaceful coexistence, he said.

This sad result could be avoided in the future by proactive and quick land claim settlements and quick response by police and the Crown to the court's orders, said Marshall.

Even while recognizing the importance of land claim negotiations, he refused to let fear of impacting them to allow blatant disregard of a court's lawful order. Defiance of orders undermines court authority, he said.

Marshall also refused to accept that police and Crown powers of discretion should be used as a policy or to oust court jurisdiction. The judge also disputed the OPP's and Attorney General's position the original criminal injunction ruling was erroneous.

After his ruling, Six Nations, OPP and lawyers spoke about reviewing the decision. All counsel is concerned about Marshall's conclusive orders, stated Darrell Doxtdator, who is a political adviser for Six Nations band Chief David General. After reviewing the decision, they will consider next steps. "It may warrant an appeal," he told reporters.

At the least, the decision was not helpful and has the potential to inflame the situation in Caledonia, said Doxtdator.

OPP Inspector Douglas Babbitt, who is incident commander for the Caledonia situation, said OPP will meet with their own attorney to decide a course of action. In the meantime, policing will remain unchanged, he said. The focus will continue to be on maintaining peace and calm so negotiations can continue at the negotiating table, he added.

After court, Six Nations spokesperson Hazel Hill called Confederacy and band council members with the news. They were expected to meet as soon as possible. Based on the Two Row Wampum Treaty, that illustrates natives and newcomers living under separate legal and community systems, this court has no jurisdiction over Six Nations, she pointed out.

Because Marshall owns property in the Haldimand tract, she suggested he had a personal interest in the land. Clyde Powless, another native spokesman, also questioned the judge's authority. "A two bit judge is stepping in the way of government negotiations," he said, adding that his people will not make any rash decisions in reacting to the ruling. The barricades will go up if safety is at risk, said John Garlow, who has been on the site for months.

Pat Woolley of Caledonia agreed with suspension of negotiations and protesters leaving the land. From there, negotiations should proceed in public, he added.

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