BRANTFORD – A judge has ordered natives to halt protests at development projects they claim are being built on unsurrendered land.
Ontario Superior Court Justice Arrell Harrison has upheld a Brantford bylaw prohibiting such activities at designated construction sites and ordered protesters and their supporters to “ceast and desist from stopping work in any manner whatsoever.”
The judge has also upheld a city bylaw to halt the Haudenosaunee Development Institute, a land planning group supported by the traditional Confederacy government, from collecting fees for permitting developments to proceed on the sites and has ordered the HDI to halt such activity.
Court heard the HDI asked the developer of a Brantford hotel for a $3,000 fee and that another company had been asked to pay $7,000. These requests included the levying of an annual development fee.
Harrison’s much-anticipated 27-page judgment comes after the issues first came to the courts in 2008 following regular blockades and the passing of the two bylaws by Brantford council.
Members of Six Nations first occupied a Caledonia housing project in 2006, claiming it was being built on unsurrendered land, and the protests spread to Brantford in 2007 and 2008. The Caledonia situation remains unresolved, but the Douglas Creek Estates housing project never proceeded and the province bought the land from the developers. Ottawa says Six Nations has no claim to the site and surrendered the land in 1844.
Six Nations was granted six miles on each side of the Grand River, from its source to Lake Erie, in 1784 by the British Crown for support during the American War of Independence. It is known as the Haldimand Tract. Band members now reside on five per cent of that land grant on a reserve outside Caledonia.
Harrison questions assertions from Six Nations members that the land where the 10 Brantford projects were being built still belongs to the band.
He cites documents presented to him from researcher Joan Holmes where Six Nations leaders in 1844 and 1846 agreed to surrender the land for sale, except for a block in the vicinity of the Mohawk mission or school.
“The City of Brantford was established within the lands described by Ms. Holmes,” Harrison said in his judgment released Thursday.
“That is, within the lands that she opines the Six Nations agreed to surrender for sale and were indeed sold.”
He said in another part of his judgment, “Six Nations, despite 25-30 – years of archival research on their own, have never elected to commence any legal proceedings against any entity, being either private or government, for the return of this land or title to the land ... 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. Property has been bought and sold over that time period.”
The judge acknowledged Six Nations did commence a 1995 lawsuit against the federal and provincial governments seeking compensation for land lost from its original land grant, but never for return of the land. The lawsuit has sat dormant since 2005, but the elected-band council has talked over the last year about reviving it after land claim talks with Ottawa and Ontario, spurred on by the Caledonia dispute, did not go anywhere.
The city passed two bylaws in May, 2008 in the wake of increasing protests at construction sites. One was to prohibit obstructive actions at construction sites in designated areas and the second was to counter attempts by the HDI – which had also been active in Haldimand County — to take control of development in the Haldimand Tract. It also obtained an interim injunction regarding the protests in June, 2008.
Six Nations representatives tried to squash the city’s moves. They argued the injunction would result in irreparable harm to Six Nations people by destroying the rights and interests in land which they are trying to protect. They also argued the city’s two bylaws violated Charter rights of freedom of expression, assembly and liberty and breached the Crown’s duty to consult and accommodate native peoples under the Constitution.
The judge sided with Brantford, saying it passed bylaws to prohibit unlawful activity that included violence, threats, intimidation and the collection of illegal fees and tariffs by unauthorized individuals.
“In my view the city will suffer irreparable harm, if that has not already occurred, if this situation is allowed to continue,” Harrison said.
“I find as a fact, on the evidence before me 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.”