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Injunction hearing: Six Nations
December 31, 2008 - 1:28pm
I posted this in another thread but I'm starting a new one for updates. The injunction hearing may resume this Friday in Brantford:
I THINK FRIDAY WITH THE FEDERAL GOVERNMENT JUNIOR
EMPLOYEE(PAUL SULLIVAN) TO SPEAK ON NEGOTIATIONS! AFTER I WROTE YOU
LAST ,THE NEXT DAY IN COURT THE JUDGE AGREED TO HAVE THIS PERSON ATTEND
COURT!THIS HAS CAUSED STRONG OBJECTIONS FROM SIX NATIONS AND I'M UNDER
THE SILLY BELIEF THAT THIS IS ILLEGAL BUT WHAT DO I KNOW!
Background, from Patrick Brazeau thread:
The Supreme Court just put a ban on injunctions, failing "adequate" consultation and accommodation of Aboriginal Rights by 'the Crown', and 'the Crown' regularly fails.
http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.pdf
[48]
Where a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.
'Frontenac Ventures' (uranium prospectors) appealed this to the Supreme Court and it was just recently dismissed, so that's the end of it, that's the law: No injunctions against Indigenous people defending their Aboriginal land Rights, until the Crown has accommodated those rights.
EG,
http://grannyrantson.blogspot.com/2008/12/update-from-brantford-court-re-six.html
Dec 22 2008 Update from Brantford Court re Six Nations, Aboriginal Rights
The
City of Brantford requested an injunction against Six Nations to
prevent them from blocking construction. The injunction hearing is
being held today and tomorrow.
The Supreme Court, the final
'court of appeal' recently upheld the ruling that the court cannot
grant an injunction until the Crown (Ontario) has fulfilled its duty to
consult and accommodate Aboriginal Rights. The Brantford court is
obligated to follow this ruling:
Update rec'd from a Brantford supporter:
I was in court today, well actually 20 minutes ago, and the judge made
the city of brantford pay for a certain motion that they bungled,
$1200.00 plus other related costs and gst. They will be in court
tomorrow. On a more interesting note I have been made aware of charges being laid very soon against, I repeat against, Brantford city
council!!! Lets see how that turns out.
The judge seemed quite agitated with lawyer Neal Smitherman and was losing patience. They tried to summons a negotiating employee of Indian Affairs her name is Murphy but that met with resistance from the judge! No one from the federal government appeared and the lawyer from the provincial government said he would not be prepared for tomorrow, but the judge didn't care and clearly stated that he had 3 to 4 months to prepare so all parties should show up tomorrow, unless there is 15 to 30
centimeters tomorrow, there will be no adjournment!
...
It seems to me that the lawyers for the City of Brantford and the Province of Ontario are unprepared to present their cases. Hmm ... Looks like more stalling by governments. That's all they can do now is stall, and
they are very good at that, but the court cannot grant the City of
Brantford an injunction.
Yup ... This is huge.
No injunctions, no arrests, no early morning police raids of occupied
sites ... no development, no mining, no logging, unless the rights of
Aboriginal people are accommodated, to the satisfaction of the court.
On this latter point, it is interesting to note the precedents in BC. When
the province pulled the typical government move and coerced an
Indigenous community into 'agreeing to agree in the future' while
logging continued, the court did not accept the agreement, and ordered
the province to stop the logging until a proper agreement was in place, accommodating the rights of the Indigenous community on their traditional land.
More here ...
http://grannyrantson.blogspot.com/2008/12/supreme-court-upholds-provinces-duty-to.htmlIt is a terrific breakthrough, since the Supreme Court has already ruled. It simply remains for local courts to abide by the ruling whenever an injunction is requested to shut down (a) blockade(s) by Indigenous people, eg, the City of Brantford v Haudenosaunee Six Nations. The court has to evaluate the "adequacy" of the consultation and accommodation of Aboriginal Rights first.
It also remains for the developers, miners and loggers, etc. to get the message clearly: Provincial 'approvals' to drill,develop, etc. mean nothing if Aboriginal Rights have not been "adequately" accommodated.
RE Brantford: Though there is a 'temporary' injunction in place, Six Nations continued to block developments anyway and eventually the developers pulled up stakes and moved on, so the sites are mostly shut down anyway. However, the Supreme Court ruling applies to all sites of development throughout the Haldimand Tract (and Ontario, and Canada).
RE Brazeau ... Though the paradoxes in his beliefs are a concern, the discussion created by his presence in the Senate could bring a breath of fresh clean air. There is the issue of reorganization of land and resources by traditional Indigenous Nations that can gain some ground.The result of the APPEAL was for the sentencing and fines only which means that they can still grant an injunction they just have to be more careful in the sentencing and fines when the injunctions are broken.
If another appeal were made on the actual injunction based on the statement made by the upheld decision it would likely be struck down however unless there is decision I am not aware of that has not been done yet which means that injunction still stands, the current injunction against Six Nations still stands and future injunctions still can go through.
That's true regarding the charges against the individuals from Ardoch and KI. However, the Ontario Court of Appeal also addressed the issue of injunctions:
[47]
I am quick to point out that in this case, the AAFN did not appeal either the interim or the interlocutory injunctions granted by Thomson J. and Cunningham A.S.C.J.C. It is thus not for this court to address the merits of either order. However, I think it is important to give judicial guidance on the role to be played by the nuanced rule of law described in Henco when courts are asked to grant injunctions, the violation of which will result in aboriginal protestors facing civil or criminal contempt proceedings.
[48]
http://www.ontariocourts.on.ca/decisions/2008/july/2008ONCA0534.pdfWhere a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.
The Supreme Court upheld this ruling by dismissing Frontenac Ventures appeal (http://www.uraniumdefense.ca/). Thus there is no further appeal, and there can be no more injunctions against Indigenous Peoples asserting Aboriginal Rights until the Crown has fulfilled its "duty to consult and accommodate" Aboriginal rights.
This is a well known ruling in BC, where the courts are also actively evaluating the "adequacy" of the Crown's consultation and accommodation of Aboriginal Rights.
That is what the Brantford court must do.
It will drag out for sure. The feds sent a junior person, the province no one as yet. It's the province that has failed to consult before approving developments.
It's interesting to note that the injunctions against Ardoch, KI, Six Nations and others could be appealed. For example, without the injunction, I don't believe Frontenac can sue the Algonquins for anything.
Six Nations, Brantford court date
The injunction hearing - City of Brantford v Haudenosaunee Six Nations - resumes Wednesday Jan 7
On wednesday the 7th Dick Hill will be in court in brantford over the illegal injunction using a constitutional defense!
70 Wellington St.
Brantford, Ontario
Perhaps the mod would move this to 'Activism' ?
Actually there can be further appeals. Because the Supreme court dismissed the appeal Frontenac can come up with a different reason to appeal and then appeal again. It isn't very likely, though because they probably put thier best reasons for appeal in the first appeal. If the Supreme court had heard the appeal and then made a decsion on the case then there could be no further appeal.
Also different "parties" could be heard on similar issues as this case and the court could change it's mind on those cases ( not on this case - the Supreme Court is the only one that can change the ruling in this case ).
This case can be used to show precident for other FN cases but it is not a guarentee. Meaning that companies can still take the money to push through injunctions that they know they will eventually lose to buy them some time (worked for Hampton Inn). Looking into the judges that were involved at the first level it is a good bet that there will still be some judges out there that will still push the injunction through based on precident of civil cases rather than precident of FN cases just because they want to. But the more cases that get heard, after the time it takes to go through the system if this rulings is upheald at the higher levels such as the Supreme Court, the more that will end up being able to show precidence which makes a stronger case for FN in the future to fight the injuction before there is an interim injunction put against them.
Haudenosaunee Six Nations injunction hearing:
An Amicus curiae was appointed, and the report says the Haldimand Proclamation and the Simcoe Patent are both
valid.(-edit-) "legally binding as treaties".Thanks very much for these encouraging updates, saga.
In regard to the Court of Appeal decision, this does appear to severely restrict the ability to prosecute FN people for breach of these kinds of injunctions. From the information in this thread however, it's unclear how much of an effect this decision would have on judges' ability to impose these injunctions. It is possible that the courts may not follow the Court of Appeal's reasoning on imposing injunctions, because this issue was not properly before the appeals judge. He didn't have jurisdiction to write judge-made law on that issue. His comments are very helpful but technically it looks like they would be considered 'obiter dicta' -- that is, not binding precedent.
Thanks, saga. Do you have any links to information about the report or details? I looked on the net but can't seem to find anything yet.
The hearing is still in progress this week. I just got a verbal update. Not sure how long it will go on for, but when the ruling is completed, I'll post a link.
It's interesting that an Amicus curiae can quickly research and figure out something that the feds haven't admitted in three years of negotiations!
Of course, that's just the feds style of negotiating: Admit NOTHING! EVER! Even after signing new treaties, the feds don't admit to errors or injustices.
It's just a game to "minimize liability of the Crown".
It's regrettable that Six Nations has been dragged into our courts, but from my perspective, I have more hope for a rational approach from the courts than the feds.
Thanks livewire!
Resuming tomorrow?
Put over until Monday, 23rd, 10 am.
Smitheman is up to his usual tricks. Taking what started as facts and reporting them like the national enquirer. The Haudenosaunee start presenting their case today.
Here are two reports on it, keeping in mind they are ONLY the case that Smitheman is giving and just because he says it doesn't make it true.
http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1448174
http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1450189
Here is why the court proceding were adjourned until this week. Please note that even though the article tries to imply that the Haudensaunee have rejected the memorandium, in fact they want to talk to lawyers, and both the federal and provincial negotiators first (or they could just trust them.......
)
ETA: When I try and post the link my entire post disapears, don't know why but will try to post the link in the next posting.
The memorandum commits Ontario to continuing discussions between the city, the Haudenosaunee Six Nations Confederacy Council and the elected band council toward an interim agreement on development in Brantford. Under such an agreement, the Haudenosaunee would benefit financially from development.
...Hancock praised the province for taking the lead in the talks. "We were exceptionally happy that the province would be a participant in helping find a resolution," he said.
Their methods and intentions are shabby as usual, BUT ... Ontario is there. That's a missing link: the Crown (province) has a duty to consult with Six Nations and accommodate their Aboriginal Rights in the Haldimand Tract BEFORE any development is approved.
That's why developments are being stopped, and the province has been absent, in hiding.
It's about time they started to do their job, but it appears they have a ways to go yet. One unilateral memorandum does not an agreement make, perhaps?
But after 3 years, it's at least an acknowledment from Ontario that it's their responsibility.
Of course, I expect they only showed up because it looks like Six Nations is winning in court, and the province was going to be ordered to consult anyway. (imo)
Hearing Adjourned to March 9
Lawyers huddled together for a whispered consultation at the native injunction hearing Wednesday when Justice Harrison Arrell brought the proceedings to a stop by asking a pointed question.
"I want to understand what you want me to do," said the judge, who is deciding whether a temporary injunction will move on to the next stage in keeping protesters away from area development sites.
Arrell interrupted Fay Farady, who was making a point that protesters are pushing for the municipality to negotiate with them rather than just notify them of construction when Arrell stopped her by noting that the concept she was outlining meant the end of development in the city.
"Is your solution to have good faith negotiation and, until there is that, all development in Brantford stops? Is that your position?
"It is a question that is foremost in my mind."
The group of lawyers are representing the natives -- Floyd and Ruby Montour, Hazel Hill, Aaron Detlor and the Haudenosaunee Development Institute -- named in the injunction.
An "amicus curiae" or friend of the court also has been appointed to represent others named and to assist the court in other issues.
Together the defence team has divided the case into issues rather than each defending a single client.
Farady, representing the Montours, was stopped by the judge as she outlined the importance of land to native culture and was giving an overview of the native argument against the injunction, laying out the case for Canada, Ontario and municipalities, such as Brantford, to consult and accommodate natives.
After a brief consultation, the lawyers promised that they'll explain everything in March when the hearing resumes.
"We have to go through the analysis and I don't want to shortchange things," said Faraday.
Lou Strezos, who represents the Haudenosaunee Development Institute, promised to address the issue down the road, but assured the judge that no one on the native side was trying to insist that all development be frozen.
Faraday also noted during her presentation, that it was a serious allegation the city was making through its lawyer when it called HDI a "sham" and that it was demanding "protection money."
Faraday said HDI isn't demanding money, nor is it directing protesters.
Earlier in the day, the city's lawyer, Neal Smitheman, finished his case by trying to assure local property owners they have no worries about their land under the Real Property Act.
"You have a 10-year period after finding out you may have a right to the land and if you don't bring legal action in that time, you can't hope to get the land back," said Smitheman.
"If you search the title and if you don't find a certificate of pending litigation, then the title is clean and you can rely on it. It doesn't matter what's in the newspaper or if someone is standing on a soapbox with a different opinion. That's the system and people can go home and sleep in their beds knowing they own their own land."
The hearing continues on March 9 for four or five more days.
http://www.brantfordexpositor.ca/ArticleDisplay.aspx?e=1452243
Native leaders willing to work out deal with city
Leaders from the Six Nations elected and traditional councils say they are still willing to work toward an agreement with Brantford and Ontario that could put an end to court injunctions and blockades of construction sites, and allow natives to benefit financially from development.
But they made it clear in news conferences and interviews Wednesday that they won't bother considering any further a confidential draft memorandum of understanding negotiated by the province between the city, the Confederacy council and elected band council.
"That document is right out the window," Mohawk Chief Allan MacNaughton of the Haudenosaunee Six Nations Confederacy told reporters in a foyer of the Oneida Business Centre on Fourth Line, where ongoing land claims negotiations were being conducted.
If all parties had agreed to the memorandum, over a three-month period the city would have stopped its injunction application against protesters, the Confederacy council would have gotten activists to stop disruptive activities at construction sites, and the elected band council would have delayed its legal action against Brantford and Ontario.
Eventually, a formula would have been implemented to allow Six Nations to benefit financially from development projects.
But MacNaughton said both the Confederacy and elected councils had decided in a joint meeting last Sunday not to consider the draft memorandum, "not because of its contents," but because they believed an agreed process involving strict confidentiality was not being followed.
It was "tainted" by a leak from Brantford's council immediately following its consideration of the document in a closed-door session last week, he said, and was further violated when Brantford Mayor Mike Hancock released it to the media.
MacNaughton also recounted an instance from last week when "some lawyer" held up a document in a proceeding and said: "There's an agreement" -- when it was still supposed to be confidential until all councils had a chance to review it.
He further insisted the memorandum was supposed to remain in a process of confidentiality all the way to the table of the ongoing land claims negotiations involving Six Nations, Canada and Ontario.
The leak not only "disrupted" the process, he said, it also raises concerns in the eyes of Six Nations about the motives of Brantford council.
"Is it something to discredit us?" he wondered.
"You know what it shows? I think it shows Brantford does not have its hand held out, it shows it does not like the way its injunction is going.
"But the way this is ending up, they'll be able to say, 'See, it just shows those Indians can't make up their own mind.' "
Hancock had no response to those comments when phoned Wednesday.
Although the memorandum is dead, "it doesn't mean the ideas are not worthy of consideration," said Mac- Naughton.
He held out hope that some aspects of it could be revived in renewed negotiations, as long as the established process is respected.
"We are also willing to consider others means of constructive dialogue together," said Hancock.
Tom Molloy, Ontario's chief negotiator, said he is aware of the memorandum and its failure, but hoped some good may come of it.
"I hope it sends a signal that we can find a model to work together," he said.
"We're just worried about the land."
'We're just worried about the land'
that soapbox Smitheman is a real jerk. 'national enquirer' material indeed.
and the city leaking confidential materials, pathetic, really.
so March 9 resumption of hearings, and does that mean there's further negotiations in the meanwhile?
appreciate the updates.
I think there are negotiations this Wednesday.
The feds have decided they want to abandon the Welland Canal lands for now and present their position on the Brantford casino lands.