Caledonia occupation legal: Province

Protestors can stay in Caledonia
Court clears way for talks to resume

Aug. 23, 2006. 10:28 AM
JESSICA LEEDER
Toronto Star

The Ontario government said for the first time yesterday hundreds of Six Nations protestors who have been occupying a disputed land development in Caledonia for six months can legally remain on the land.

"It is our view that they are not there unlawfully," Dennis Brown, a lawyer representing Attorney General Michael Bryant, told a panel of three judges at the Ontario Court of Appeal.

Land-claim negotiations surrounding the contested 40-hectare site are set to resume today after being suspended due to the interpretation of a court order.

Two weeks ago, Superior Court Justice David Marshall said negotiations should stop until protestors cleared the land.

The appeal court yesterday clarified Marshall's words, clearing the way for negotiations to resume.

"In our view, the parties should be free to continue without fear of being in breach of a contempt of court order," said Associate Chief Justice Dennis O'Connor.

David Ramsay, Ontario's minister responsible for aboriginal affairs, said negotiators will meet "immediately."

"We believe that negotiations are the best option for a peaceful resolution to the situation in Caledonia.

"We have made progress and we are optimistic ...," he said.

Protestors have occupied the land since February as part of an ongoing dispute.

Bordering on a schoolyard and the town's main street, it has been the site of numerous violent clashes.

At a town meeting last night, news of the province's position was met with anger.

"They're livid," said Ken Hewitt, a spokesman for the Caledonia Citizen's Alliance.

"You've got a piece of property that's been held up in a question mark ... the occupation and the future of that land continues to stir the emotion and the passion within people."

The issue made its way into the courts after Marshall called a series of special hearings, saying he was mandated to ensure the rule of law is restored.

The result of the hearings came in the form of a strongly worded judgment issued on Aug. 8.

In it, Marshall said he had jurisdiction to order the government to halt land-claim negotiations with the protestors until they left the land, noting "the government agents involved in these negotiations should ... withdraw from these negotiations until the court orders are respected ..."

Marshall repeated the comments in a draft order not made public, prompting a halt to negotiations and a vow by the province to appeal.

But Marshall's formal order made public last Friday did not include the paragraph ordering talks to stop.

The gap between the contents of his judgment and his formal order created legal confusion.

Yesterday, Brown and more than a dozen other lawyers asked the appeal court to stay (effectively suspend) Marshall's order until an appeal can be heard next month.

Brown said the most concerning element of the order is a contempt order that criminalizes occupiers. Marshall made the contempt order in March at the request of a private developer, who then owned the property.

When the province bought the land in July, Brown advised the judge they thought the contempt order was nullified.

Marshall disagreed and ordered the attorney general to ensure contempt proceedings carry on. The court reserved until Friday its judgment on the motion to stay Marshall's order. The appeal of the order will be heard in September.