Published on Tuesday, Nov. 10, 2009 12:00AM EST Last updated on Tuesday, Nov. 10, 2009 4:37PM EST
If anyone ever wondered just how hot a political potato is the native file in this country, the Ontario government yesterday delivered a stinging reminder.
Lawyers for the province were in court here for the long-anticipated start of a $5-million lawsuit stemming from the notorious native occupation, run under the banner of the Mohawk Warriors, of the Douglas Creek Estates development in Caledonia almost four years ago.
During that two-month standoff, which drew national headlines, protesters barricaded a major street in town and blocked the entrance to the estate, set piles of tires blazing, destroyed a wooden bridge, threw a vehicle off an overpass, damaged a hydro transformer station and demanded residents produce native-issued "passports" to get through the barricades.
The suit is being brought by Dave Brown and Dana Chatwell, a Caledonia couple whose home is basically surrounded by the former housing estate, part of a then-little-known Six Nations' land claim and at the time under development until natives forcibly occupied it in February, 2006.
But where the Ontario government eventually "settled" the dispute by buying the developer out for about $12-million, allowing the natives to remain, Mr. Brown and his family were left to fend for themselves.
Ever since, they have lived in fear, unable to sell their home, but also unable to live in it with anything approximating a normal sense of peace because, their lawsuit alleges, the government has ordered the OPP not "to prosecute the lawless conduct of the protesters" and, as a result, the couple and their son effectively have been held hostage.
The protracted ordeal has left them bankrupt, Ms. Chatwell's home business in ruins, and Mr. Brown unemployed and diagnosed with post-traumatic stress disorder.
With opening statements slated to begin, Mr. Justice Thomas Bielby of the Ontario Superior Court yesterday called the lawyers into chambers, and there told them that Mr. Brown's lead lawyer, John Evans, 14 years ago had been hired by the company that insures lawyers to represent him.
That claim, which was about a credit union and a mortgage, never proceeded to trial, and while Judge Bielby recalled that they had met once, Mr. Evans didn't even remember the meeting, and, as he said in court, the two men have no personal or private relationship.
It was a connection of the most dated and fleeting sort, likely raised by the judge, who was appointed to the Brown case last Friday, only as a matter of courtesy.
No one in court expected it would amount to anything other than a slight delay.
But after several false starts, government lawyer Sara Blake returned to court to announce that she had been given instructions to bring a formal motion asking Judge Bielby to withdraw from the case - or recuse himself, as it's called.
This is a very rare occurrence, because judges are deemed to be beyond any influence, let alone that an encounter of a trifling nature could raise what's called "a reasonable apprehension of bias."
What Ms. Blake had to say was nothing short of astonishing.
"...this case is very significant for the Crown," she told the judge.
"It does bring into - raise issues - to do with the honour of the Crown in the Crown's dealings with aboriginal peoples, when they have significant claims issues, and how to deal with protests surrounding those issues, as both deal with the aboriginal peoples, the first nations, or the Six Nations in this case, and deal with the civilians who live in the area.
"These are very significant issues for the Crown," she said, "and they are very concerned that even just the tiniest apprehension of bias may give rise to some concerns and so they are very concerned about this case proceeding when there's even just the tiniest little, you know, whiff of a problem."
What Ms. Blake revealed is not only how important the government considers the case, but also that matters that touch on native issues are of such uber-sensitivity that even a "whiff of a problem" can't be tolerated.
Ms. Blake's remarks also suggest the government appears ready to defend the case on the basis that native land claims are such precarious matters that their settlement, however achieved, trumps all non-native rights.
Indeed, in its "statement of defence," the government says it and the OPP considered many complex issues including, but not limited to, the fragile peace in Caledonia, the importance of the rule of law, aboriginal and treaty rights, constitutional rights, the rights to lawful enjoyment of property, the right to lawful protest, concerns about public safety and the Crown's role in bringing about the reconciliation of aboriginal and non-aboriginal peoples through negotiation."
And the government denies it owes any "duty of care" to Mr. Brown and Ms. Chatwell because all its decisions "in relation to the occupation of the DCE lands were policy decisions."
Effectively, Mr. Brown's and Ms. Chatwell's lawsuit alleges the same thing - that the government, as a result of policy decisions taken for improper reasons including "political gain," actively condoned the unlawful and criminal conduct of the protesters and failed to protect non-natives, denying them "the equal protection that they are entitled to under the law in a free and democratic society."
In one of the peculiarities of the justice system, only a judge can decide whether to continue with a case or disqualify himself. Judge Bielby will hear arguments today.