Caledonia occupiers can stay a month: Court

Aug. 26, 2006. 12:15 AM
JESSICA LEEDER
Toronto Star

Aboriginal protesters occupying a disputed land development in Caledonia can remain there for at least another month without breaching court orders to clear the land.

A three-member panel of the Ontario Court of Appeal moved yesterday to freeze Superior Court Justice David Marshall's order criminalizing anyone who sets foot on the development, called Douglas Creek Estates.

"The Province owns Douglas Creek Estates. It does not claim that the protestors are on its property unlawfully. It does not seek a court order removing them. It is content to let them remain," the panel wrote. "We see no reason why it should not be permitted to do so. If the protestors cause a nuisance or other disturbance ... then action may be required."

The decision came three days after lawyers for the Ontario Attorney General told the court the province does not view peaceful protestors as trespassers, and has no desire to remove them.

Their arguments centred on whether an injunction granted to a property owner to keep trespassers off land dissolves if the property changes hands.

The original owner of the disputed development, Hencoe Industries, obtained an order to remove protestors in March, weeks after protestors began occupying the development site and the company's main office.

Last month, with protestors still on the land, the province bought the property for $12.3 million. When the sale was announced, a Hencoe lawyer asked Marshall to dissolve the injunction.

Instead, in a judgment this month, Marshall said the order was attached to the property, and thus remains in effect under provincial ownership. An Aug. 8 order he signed codified his decision, which effectively criminalized anyone, including provincial representatives as landowners, who sets foot there.

Yesterday, Associate Chief Justice Dennis O'Connor, and Justices John Laskin and Kathryn Feldman agreed to stay, or suspend Marshall's order while the province prepares to appeal (in late September), stating, "We doubt that this reasoning is correct in law."