The city will have to wait to see if its attempt to get an injunction against native protesters is successful after the judge hearing the matter reserved his decision Friday.
Justice G. E. Taylor spent the day in Ontario Superior Court hearing motions from lawyers representing defendants Floyd and Ruby Montour, the Haudenosaunee Development Institute, lawyer Aaron Detlor, Clive Garlow, Charles and Mary Green and David Martin.
The city is seeking an order that will stop the protesters from hindering developers and is also asking for $110 million in damages from the defendants.
By almost 4 p.m., Taylor had heard enough and declined to give a platform to other natives in the packed courtroom who weren't named specifically in the motion for an injunction. He said he would make a decision as soon as possible.
All sides agreed that the main issue must be adjourned several weeks to provide time to get proper representation, prepare evidence and have time for cross-examination.
But the city pressed the judge to give it an interim injunction, which would order the protesters off the disputed land until a final decision is made.
Others argued that an interim injunction would be no different from a final injunction and could do as much damage, leading to violence. Neal Smitheman, the lawyer for the city, said developers and the municipality suffer serious financial harm with each passing day. But there would be no inconvenience to the protesters to have them stop their actions for a few weeks until the matter can be fully heard.
"This is causing irreparable harm and has to stop immediately," Smitheman said.
One of the boldest statements against an injunction came from Ovide Mercredi, who was regional chief and then chief of the Assembly of First Nations during some of the biggest clashes between natives and non-natives in the last 20 years. He filed an affidavit from Winnipeg this week.
Mercredi said the circumstances unfolding in Brantford are frighteningly familiar to Oka, Ipperwash and Kanesatake and cause him great worry.
"My experience of these events is that the presence of heavily-armed law enforcement officials - or even the threat that they will be sent - is an impediment to peaceful negotiation and resolution."
Lawyer Lou Strezos, who read parts of the affidavit to court, pointed out the relative calm of a native rally outside the courthouse.
"This is not an FLQ crisis! Look out the window. There is no riot in the city of Brantford."
Other affidavits were presented to the judge from land researcher Phil Monture, Six Nations administrator Lonny Bomberry and Haudenosaunee Development Institute (HDI) lawyer Aaron Detlor.
The HDI and Aaron Detlor have hired Maryls Edwardh to represent them.
Known for her high profile cases on royal commissions and for Guy Paul Morin, Steven Truscott and Brantford's Mahmoud Mohammad Issa Mohammad, Edwardh appears poised to argue that the city's hastily passed bylaws against protesters are unconstitutional.
"They were discussed in camera with no notice to the community and with no discussion. Council went into a public meeting and within three minutes passed the bylaws. Any injunction based on them is wrong."
Edwardh also said Floyd and Ruby Montour, well-known for their protests around town where they tell developers to meet with HDI, aren't affiliated with HDI.
"HDI has no connection with the individuals protesting," Edwardh said.
The city's motion of the injunction shows it has had repeated reports of the Montours and their supporters telling developers to stop work because of their lack of communication with HDI.
But Smitheman argued that if the Montours were not acting on behalf of HDI, neither HDI nor HDI interim director Hazel Hill should object to them being told to stop.
Smitheman said the city would have no objection to adding Canada, Ontario and Six Nations elected council to the already crowded case. He noted that Six Nations has previously said it is not trying to reclaim land but is trying to ensure it gets a proper accounting of monies owed.
"So, it's about money and, at the end of all this, if they're right, they'll get money," he said, reasoning that the development around the city could proceed.
"We are pleased that there was a full argument dealing with important terms," said a statement prepared by the city solicitor Larry Tansley.
"We are looking forward to receiving the decision from the court when it is released."
The judge also must decide on a request to turn the case over to a case manager judge who would stay with the case and decide on all the complex aspects.
Some of the lawyers suggested that the entire case could be moved to Toronto where all the lawyers work from and where there are more potential case manager judges available.
What's next
The request by the city for an injunction has been adjourned, but Justice G.E. Taylor will deliver a ruling - likely next week - about a decision on an interim injunction.
If an injunction is granted, it will likely order native protesters to stop interfering with the work of developers at project sites.
The judge also will decide whether the whole court action is turned over to a case management judge - perhaps one in Toronto.
Once the decision about an interim injunction is made, the judge will set a time for all the parties to return to court to argue about the actual request for an injunction.
The parties are asking for time to cross-examine various people who have filed affidavits and police officers who filed reports of what they'll say in court.
Meanwhile, protesters may or may not obey any interim injunction that's made.
Any protester who ignores an injunction can be charged with contempt of court and arrested.