Kingspan advised of possible native protests

COURT: $10-million lawsuit against city adjourned until end of June

April 14, 2010 Brantford Expositor

Documents filed in the $10-million lawsuit against Brantford by Kingspan reveal a city trying to keep native protests under wraps and a company determined to get the perfect spot for its new plant.

The suit was to have been in court last week to let a judge decide whether it has enough merit to proceed, but it's been adjourned until the end of June.

Kingspan's complaint is that the city knew it was selling land that might have a problem with native land claims. Brantford is arguing that the land had a clear title and the city couldn't have predicted the protests that later occurred at the 18-acre property.

The statements in the documents have not been proven in court.

Kingspan's lawyer, Clifford Lax, declined to comment on the case while it's

before the courts. Mayor Mike Hancock did not return a phone call

requesting comment.

According to affidavits filed in the case, Hancock was trying to keep a lid on any publicity both about the city's native protesters and the upcoming deal to sell property on Fen Ridge Court to Kingspan, a U.K. manufacturer of insulated panels for construction.

John Brown, the city manager, wrote to economic development director John Frabotta in July 2007 about the "Irish company." Brown urged Frabotta to "take action" to ensure there would be no publicity about the potential land sale.

"Talked to the mayor," says the email, "and he does not want any publicity at all ... he doesn't want (native protester) Ruby (Montour) to show up !!! and (Kingspan) change their mind about the city."

Frabotta responded: "We will do our best to evoke the 'cone of silence'."

Later in the fall, with Kingspan on the cusp of closing the deal, Frabotta suggested that he, the mayor and the city manager get together to talk about a "corporate response" to questions that investors and Kingspan might raise about protesters.

"If protest receives greater exposure by the Toronto or national media this may cause KS and for that matter other potential investors from proceeding with their projects in Brantford," wrote Frabotta.

Managing the publicity for Kingspan wasn't too big of a concern, it turns out.

Donal Curtin, the director and general manager of Kingspan, was keen on the city's northwest industrial park as the perfect spot for his insulation panels business. Kingspan had bought Coldmatic and Brantford's Zeroloc operations and was merging them into a new facility that would represent a $45-million capital investment in land and equipment.

But Kingspan's lawyer was nervous.

According to discovery materials, Curtin and lawyer Daniel Law had a conversation in October 2007, before the deal closed. Curtin was advised of the possibility of "blockades on the property." Curtin still pushed Law to close the transaction.

"Donal need to purchase --ideal property," according to the lawyer's handwritten notes. "Needs site rt/size location."

Law tried to demand documentation proving there was no Indian burial ground or village on the site and demanded the city provide a document from Six Nations "releasing any right, title or interest of claim to the property."

Brantford's response was "self-serving," says Kingspan. The city said the Kingspan land wasn't part of any specific land claim and noted that the 1995 litigation involved trust claims and claims for stolen money but no claim for possession or ownership of land.

At that point Ruby and Floyd Montour had been protesting and Ruby Montour had appeared before city council several months earlier to threaten another reclamation site, such as the one in Caledonia, if the municipality kept handing out permits on undeveloped lands.

And, just days earlier, the city got a letter from the Haudenosaunee Development Institute, which was established on Six Nations to oversee development, warning the city about potential land claims.

But the city's argument is that neither the Montours nor HDI represented legitimate Six Nations entities according to Canadian law.

The city pointed out that the HDI, the protesters and the Six Nations Confederacy weren't authorized to act by the elected band council --which is the entity that is recognized by Canada, Ontario and the city.

The city solicitor pointed the Kingspan lawyer to federal negotiator Ron Doering so he could speak with someone connected to the land claim negotiations. The city's lawyer also noted that Murray Coolican, Ontario's negotiator, had said essentially that private property owners have valid titles to their land, even if there are disagreements about the surrender of land.

Kingspan reviewed the documents filed in the 1995 Six Nations suit against Ontario and Canada, contacted the federal Indian Affairs Department, talked to Doering and reviewed information on land claims on federal and provincial government websites.

On Nov. 30, 2007, Kingspan's lawyer sent a letter saying he believed the company had a "good and marketable title" to the property.

It wasn't until the following spring that the protests increased to the point where Kingspan got an injunction and the city passed anti-protesting bylaws.

While just down the road, Hampton Inn struggled to continue work after frequent stoppages by the natives, Kingspan eventually left the property on July 14, 2008.

It followed up with a letter to the city requesting that Brantford repurchase the land and compensate the company for its losses.

According to Curtin, by October 2009, those losses totalled $7.7 million, including the $2.1 million Kingspan paid the city for the land.