JAMES RUSK
Globe & Mail
Aug 22, 2006
A controversial judgment by an Ontario judge that apparently ordered governments not to negotiate a land claim until native protesters leave a disputed site in Caledonia goes before the Ontario Court of Appeal this morning.
The government is applying for a stay of the original finding until the appeal is heard, likely in about a month. But the case has also taken an unusual twist.
The actual court order arising from Mr. Justice T. David Marshall's original Ontario Superior Court judgment, read out in court on Aug. 8, does not appear to prohibit negotiations.
Although the judgment said "there should be no further negotiations till ... the occupation is ended," the order, which is dated Aug. 18, and which was distributed Friday to lawyers preparing for the appeal, does not refer to the negotiations at all.
It is the order itself, not the judgment, that directs any follow-up action that would result from a series of hearings in June and July called on the judge's authority to determine why the rule of law was not being followed as the occupation has not ended despite his injunction.
The order refers an earlier contempt of court order to the Attorney-General for carriage, requires authorities to report to the judge what they have done to enforce the contempt order and says the injunction will be lifted only after the contempt order is dealt with.
Although it appears the government is still able to negotiate with the aboriginals, as the order does not reflect what is in the earlier judgment, the province thinks it must appeal the judge's finding, said a source who is aware of the McGuinty government's strategy at Caledonia.
"They don't think it [the divergence between the judgment and the order] makes any difference. . . . There is a potential cloud over the negotiations from the judgment, whether it is the order or not," the source said.
There are other potential problems for the government arising from the judgment and the order, which need to be cleared up through the appeal, thesource said.
The most critical is the legal status of the injunction: The original owner of the disputed Douglas Creek property, Henco Industries, which sought the injunction against the occupation, no longer owns the property, and the Ontario government, which bought the land, has told the court it has no interest in continuing the injunction.
Judge Marshall ruled that the injunction continues until he dissolves it and that it binds the province, otherwise an injunction could be defeated by transferring property ownership.
The province will tell the appeal court that it does not agree with the ruling that the injunction against the occupation of the property applies to the new owner, and that it wants the status of the continuing injunction clarified by the appeal court.
The source said that the province neither wants, as the current owner, to end the occupation, nor to be required by the court to clear the property on the basis of a court order that it thinks is no longer properly in force.
And the appeal court hearing has another unconventional aspect.
Both sides of a legal argument are usually represented in a courtroom, but since the judge issued the order on the basis of a hearing he called himself, that won't be the case.
Since neither the original nor the current owner of the property sought the ruling, there is no party in sight who will argue that the judge's ruling is correct, said one lawyer who will appear today.
Similarly, the aboriginal community does not intend to be represented in court, but the court may appoint a lawyer to act on its behalf, the lawyer added.