Published: Thu, 25 Nov 2010
SEAN ALLEN
brantnews.com
An Ontario Superior Court justice has granted the City of Brantford a permanent injunction against
native protestors and upheld a pair of city bylaws aimed at preventing work stoppages at
development sites.
But Brantford’s mayor-elect doesn’t find the decision all that interesting.
“I would have preferred not to have the issue before me at all,” Chris Friel said. “We are going in a
different direction.”
Justice Harrison Arrell released a 27-page decision that bars protestors from stopping work at
development sites over land claims and prevents organizations from soliciting fees from developers.
The city launched a legal action against a group of native protestors and a Six Nations organization
called the Haudenosaunee Development Institute in 2008 after blockades at development sites in the
city.
Work sites in Eagle Place, Holmedale and the city’s northwest industrial park were shut down by
protests. Meanwhile, the HDI was said to be attempting to solicit fees and charges from developers
in the city.
As part of its legal action, the city sought an injunction to prevent further harm caused by protestors
and to thwart the HDI’s requests for money.
Friel said the granting of the injunction doesn’t really matter when it comes to the likely priorities of
the next city council, which takes office in December.
“The course and direction that we’ve had with Six Nations for the last few years has proven to be
not very effective,” Friel said. “Our plan is to go in a completely different direction than the previous
council to get us moving quicker in a businesslike way.
“(The injunction) cost us $2 million and it doesn’t have any impact unless something were to
happen. We don’t have the intention to create the environment whereby anything would happen.”
In his decision, Arrell said the city’s argument for an injunction passed a three-part legal test. There
had to be a serious issue to be tried and the risk of irreparable harm to the city. That irreparable harm
also had to outweigh the risk of irreparable harm to protestors and the HDI.
Arrell noted that there wasn’t much debate about the seriousness of the issue to be tried, which met
the first test.
To meet the second test of irreparable harm, Arrell 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; the tax base is
at risk; all as a result of the city being unable to regulate development and provide a conflict free
environment.”
To balance the weight of irreparable harm for the third test, Arrell made a preliminary finding on the
root claims of Six Nations protestors with regard to land rights.
“This court is bound to come to some preliminary conclusions regarding the land claims because the
test, as to the degree of consultation and accommodation required, is dependant on that finding,”
Arrell wrote.
Arrell used eight pages of his decision to go over evidence before him regarding the Six Nations
claim to the Haldimand Tract – six miles on either side of the Grand River from source to mouth –
though he admits not all the evidence for that determination was before him.
“I conclude, by way of preliminary assessment, that the clam for title, or the return of these lands to
the respondents (Six Nations protestors), is exceedingly weak,” Arrell wrote.
But Arrell said even if his historical assessment is found not to be correct with regard to title claim,
limitation periods were missed many times over.
“For more than 150 years, the Six Nations did nothing to indicate to third-party purchasers that there
was any problem with title to their lands,” Arrell said. “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 Six Nations.
“I conclude that such an argument must fail.”
Based on that assessment, Arrell said the balance of irreparable harm favours the city’s case. Thus,
the injunction passed all three necessary tests.
“I am convinced that the potential harm to the city, if the developments can not continue, greatly
outweighs any potential harm to the respondents,” he said.
Arrell noted that his preliminary findings do not preclude Six Nations from later arguing their right
to compensation.
“The only issue, in reality, is one of possible compensation if the respondents can prove their claim,”
Arrell said.
As for a request by the respondents to quash two city bylaws that were enacted to prevent fee
solicitation and work stoppages, Arrell also sided with the city.
“I find as a fact that these bylaws were passed in full compliance with the city’s usual practice,”
Arrell wrote.
City of Brantford lawyer Neal Smitheman, of Fasken Martineau DuMoulin LLP, said he has had no
further instruction from the city. He said a lawsuit like the city’s claim for $10 million in damages is
often just a means to get an injunction.
“Effectively, that was the main impetus at this stage,” Smitheman said. “I’ll have to seek instructions
about where we go from here with the client, but right now that is not even being discussed.”
It is implied in Arrell’s decision that the city is to be awarded costs for the proceedings from the
respondents, which Smitheman said would not be the full amount the city spent.
“Probably somewhere in or around about 40 per cent of what the actual costs to the party might be,”
Smitheman said.
Documents previously obtained by Brant News show the total bill going to Fasken Martineau
DuMoulin LLP was to $2.1 million as of July 2010.