Lawyers for native applicants are asking a Brantford court to quash two city bylaws that prohibit protester interference at local development projects and have stymied a Confederacy organization called Haudenosaunee Development Institute that sought to oversee development at local land claim sites by demanding applications and charging fees.
Monday's arguments, heard by Superior Court Justice Harrison Arrell, signalled the return to court of a contentious legal battle that has been in and out of the courts for close to two years and which could not be settled by lengthy out-of-court negotiations.
Lawyers representing HDI, Hazel Hill and Aaron Detlor presented arguments on Monday, as well as extensive case law, to bolster their claims that city bylaws passed in 2008 are improper and illegal and should be quashed by the court.
Lawyer Paul Le Vay, acting for Hill, argued that the city "failed to comply with legal obligations including a duty to consult" with First Nations representatives.
Le Vay said the bylaws were passed without consultation with Haudenosaunee representatives, despite prior attempts by Haudenosaunee to initiate and engage the city in conversation about growth and development.
He said the bylaws were designed to create "protest-free zones" around construction sites and lay a legal foundation for a court injunction against future protests.
City councillors passed the bylaws in question unanimously on May 12, 2008 after fears that members, representatives and supporters of HDI did or would cause harm to the city by causing a decline in investment and the operation of public services.
As well, the actions of HDI in charging fees and imposing conditions on development in areas under Brantford's authority were considered by the city to be the equivalent of creating a parallel, unauthorized and uncontrolled rival system of law.
Le Vay said Monday that the creation of HDI was the Haudenosaunee's response to a failure by the city to engage in any meaningful discussion about proposed development or to allow for "reasonable accommodation of aboriginal interests."
Lou Strezos, representing HDI, argued that the city bylaws were illegal under the Municipal Act and were passed in bad faith.
He said the city was not seeking a protest-free zone so much as a "consultation-free zone."
Strezos argued that the city did not provide fair public notice for its proposed bylaws and what notice was given on the Friday before a Monday council meeting was improper because the wording was changed.
The city appeared to take the position that the Haudenosaunee's request to be consulted about development was interfering with development, Strezos said.
He said that all city council discussion about the proposed bylaws was done behind closed doors in an in-camera meeting and that the eventual unanimous vote in favour of the bylaws without further public session discussion was no more than "rubberstamping."
He also questioned the presence of police Chief Derek McElveny at the in-camera meeting.
"How did he get notice (of the proposed bylaws) and the Haudenosaunee did not?" Strezos said, adding the there is an issue of openness and transparency for the court to consider.
Trying to quash some bylaws
"Here is an absence of involvement and a conscious exclusion of the public," Strezos said.
Lawyer Jessica Orkin, representing Aaron Detlor, told the court there were several constitutional issues to be considered in the motion to quash the bylaws.
She argued that the bylaws violate the Charter of Rights and Freedoms by specifically targeting one group, the Haudenosaunee, which she described as a "vulnerable" group that has been "historically disadvantaged."
She added that the bylaw differentiates and discriminates because it targets a specific group and seeks to prevent that group from exercising its fundamental rights.
The hearing resumes Tuesday.