A Superior Court justice has upheld the city's injunction against native protesters who were sued after they blockaded construction sites and caused work stoppages during the past two years.
In a judgment released this week, Justice Harrison Arrell has rejected applications by the protesters to quash two bylaws the city used to prohibit such activities and to arrest violators.
Arrell has issued an order that the defendants "cease and desist from any further obstructive activities that interfere with the movement of people vehicles or equipment into or out of the construction sites."
He ordered them stop any actions that directly or indirectly threaten or intimidate any workers.
And he has further ordered that the Confederacy organization, the Haudenosaunee Development Institute, stop demanding any type of fee, levy, charge or application as a condition of the use or development of land in the city.
Outgoing Brantford Mayor Mike Hancock said Friday that the court decision "vindicates" the city's position, but he stressed it provides no cause for gloating.
"This injunction and the course of action we took was not something we wanted," said Hancock, who did not seek re-election and is set to step down from public office in less than two weeks.
"We were concerned about the reputation of the city and the economic damage that was being done."
Arrell's four-point decision, covered in 27 pages, caps a two-year period in which the city battled against recurring blockades and work stoppages at sites from Birkett Lane in Eagle Place to the northwest industrial park, which caused one businesses to abandon building plans.
The city also sought to thwart attempts by the Haudenosaunee Development Institute to take control of development through a system applications, charges and development fees, which included sending agents to collect or shut down development if companies didn't comply.
The judgment also comes after more than a year of legal skirmishes in Superior Court over the arrests of nearly a dozen activists, action against the HDI, and a challenge of the city's bylaws.
"If we've learned anything from the process, it is that we're not going to find any solution in the courts," Hancock said of a legal process the has cost the city nearly $2 million.
"This has been expensive. I hope that a lesson we all have learned is that we must return to talking and work together. Our future depends on it."
Mayor-elect Chris Friel said he learned about the judgment but has not had a chance to review it.
But he added: "I'm of a mind to work with others to change the city's approach."
He said he met with Six Nations Chief Coun. Bill Montour twice this week and the two will meet again next week to find a solution to work together.
"I generally lean toward a process we work with our neighbours," he said. "We have a better opportunity when we meet as neighbours to find solutions that last generations."
Floyd and Ruby Montour, two prominent activists who were in the group of defendants taken to court by the city, were informed of the judgment in a telephone call from The Expositor.
"I have not seen the judgment so I can't comment until I have," Floyd Montour said.
"It will be interesting to see what he wrote."
Neal Smitheman, of the city's law firm Fasken, Martineau, DuMoulin LLP, said the judgment means the city's position has prevailed and an interlocutory injunction remains in place until a trial can be set about its permanency.
"It doesn't mean that all discussion between the parties must cease. All of that can still take place," he said.
"We have a Superior Court judge's opinion that clears the air on a number of matters. The parties should be encouraged from it to engage in discussions, sit down and resolve their differences," said Smitheman.
"This has been a long and very trying occasion for everybody. It has been very expensive for all concerned. All the parties should move to negotiate, negotiate, negotiate."
In his decision, Arrell rejected applications by the defendants to quash two city bylaws passed unanimously by council in May 2008 -one to counter attempts by the HDI to take control of development in the Haldimand Tract, a and the other to prohibit obstructive actions at construction sites in designated areas.
"I find as a fact that in practice and into the future it was the intention of the HDI to require all developers of undeveloped land to apply to it for a permit, pay the requisite fee and ultimately comply with all HDI requirements, all without any legal authority to do so," Arrell wrote.
"If they did not their projects would be shut down."
Arrell further noted that the defendants violated the bylaw with actions shortly after it was approved and the city has obtained an interim injunction.
"I find as a fact that the injunction was not obeyed as evidenced in a protest on July 7, 2008 when in excess of 100 people led by Confederacy Chief Allen MacNaughton, sub-chiefs Butch Thomas and Ron Thomas and Chief Blake Bomberry shut down the Kingspan and Hampton Inn sites (in the northwest business park)," he wrote.
"Workers were threatened. A locked construction fence was pushed over. Further sites that day were also closed down by these protestors."
Arrell upheld the claim by the city's lawyers that the defendants committed two torts by engaging in "civil conspiracy" and "public mischief."
The judgment said that the protesters committed civil conspiracy in using unlawful means to effectively shut down development at specified sites. It also pointed to ample evidence of them causing a public nuisance.
"In my view, the city will suffer irreparable harm -if that has not already occurred -if this situation is allowed to continue," Arrell wrote.
"I find it as a fact ... that the economy of this small city is at risk; the employment of members of the community are likewise at risk; the reputation of the city as a place to live, work and invest is at risk; all as a result of the city being unable to regulate development, provide a conflict-free environment for investment, employment and the raising of families, and the inability of the city to ensure to local a residents and the investment community that the rule of law prevails."
Arrell also rejected claims by the protestors that they were defending land that had not been surrendered by the Haudenosaunee, and that their rights would be irreparably harmed if they lost it to development.
He accepted the opinion of one expert witness that all the lands, save the reserve and the property around the former Mohawk Institute (now the Woodland Cultural Centre) had been surrendered in the 1840s, and later sold.
He also ruled that no evidence was presented in the case that the Six Nations had tried in legal actions for 150 years afterward to try to get any of it back.
"For more than 150 years, the Six Nations did nothing to indicate to innocent third-party purchasers that there was any problem with title to their lands," Arrell writes.
"Property has been bought and sold over that time."
The only legal actions launched by the Six Nations elected band council and administration, he wrote, were in the form of a lawsuit and 29 land claims for compensation -not the return of the lands.
"It was not until this case commenced that the Six Nations claimed to have the right to control the activities of private landowners on the basis that the private land within the city of Brantford belonged to the Six Nations," he wrote.
"I conclude, by way of my preliminary assessment, that the claim for title, or the return of these lands, is exceedingly weak."