On November 19, 2010, the Ontario Superior Court granted the City of Brantford an interlocutory injunction prohibiting any interference or obstruction with development projects in the City. The Court also dismissed the applications to quash By-Laws passed by the City in May 2008.
Commencing in 2007, development projects on privately-held land in Brantford were being shut down and developers were being threatened with ongoing work stoppages unless they submitted to the demands of the Haudenosaunee Development Institute (“HDI”). These activities continued, and escalated in frequency and intensity, into 2008. Those engaging in this conduct were aboriginals who asserted that the lands within Brantford were “Haudenosaunee lands”. As such, the Haudenosaunee were entitled to regulate development on those lands. The Court found that conduct of HDI and its supporters was unlawful, that any duty to consult had been satisfied and that, among other things, the City’s economy, employment opportunities, reputation and tax base was at risk.
HDI and others argued that the By-Laws: (a) contravened the Charter; (b) were ultra vires the City as being in pith and substance dealing with “Indians”; (c) were passed in breach of the Crown’s duty to consult; and (d) were enacted in bad faith contrary to the Municipal Act. The applications to quash failed on all grounds. The Court found that the By-Laws did not target the Haudenosaunee. Rather, they addressed, and attempted to prohibit, specific activities.
In July 2007, Ruby Montour, a member of the Six Nations community, attended a Brantford Council meeting and stated, in part, as follows:
But I’m doing it as a friend tonight. So that we can stop any future action that you’re going to push us into. We’re here tonight to tell you. This gentleman here he wants to build. He didn’t ask us how we felt about it. He didn’t come to the Confederacy and say what do you think? And do you know something? He better. It would be to his own good that he does. And all future developers in this city to consider us. The first nations of these people, this land….But when we arrive and we will, if you don’t listen. We will arrive here. And what would that be your legacy Mayor. What would that be to you as a Mayor to have a reclamation site set right up in Brantford because you won’t listen to us?...
In the fall of 2007, the Confederacy Chiefs, the asserted hereditary (as opposed to elected) leaders of Six Nations, created HDI for the purpose of exercising “Haudenosaunee” jurisdiction over lands in the “Haldimand Tract”. The “Haldimand Tract” encompasses six miles on either side of the Grand River from its source to its mouth. Mr. Justice Arrell found that “in practice and into the future, it was the intention of 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. If they did not their projects would be shut down”.
Blockades and work stoppages commenced in late 2007 and escalated in 2008. On May 12, 2008, the City passed two by-laws to prohibit interference with construction on specific sites and prohibit any unauthorized group from demanding fees from developers as a condition of development. The City also wrote to several of those involved in the work stoppages and offered to discuss a reasonable resolution that would allow work to continue. There was no response to the letter. The work stoppages escalated, even in the face of an interim injunction granted by the court on June 2, 2008.
The Court held that the City will suffer irreparable harm if the impugned conduct continues. The defendants argued that the granting of an injunction would cause irreparable harm to the Haudenosaunee Six Nations people. They argued that prohibiting “protest” on the “Haudenosaunee lands” breached their Charter rights of freedom of expression, peaceful assembly and association. The Court disagreed, finding that the City only sought to prohibit “unlawful activity, which includes violence, threats, intimidation, the prevention of access to property on City streets and the collection of illegal fees and tariffs by unauthorized individuals”.
Duty to Consult
The Court addressed the duty to consult issue in assessing the balance of convenience. The Court found that the Ontario Court of Appeal’s statements in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation relating to injunctions in the aboriginal context were strictly obiter but acknowledged that these types of cases require a “careful and sensitive balancing”. In any event, the Brantford case was distinguishable from Frontenac because; (a) Brantford was not attempting to create a “protest-free” zone; and (b) the lands in issue were non-Crown lands traceable to a Crown patent and privately owned for well over a century (as opposed to mostly undeveloped Crown land which was encompassed by an Algonquin land claim accepted for negotiation by the provincial and federal governments).
In determining the strength of the asserted claim and the corresponding scope of any duty to consult, the Court reviewed the expert evidence filed by the parties relating to the assertion that the Haudenosaunee Six Nations had a title interest to the land within Brantford. The City’s expert opined that the Six Nations agreed to surrender for sale the lands at issue. The Court preferred the evidence of Brantford’s expert who concluded that “the historical documents…dating from the 1840s indicate that the Six Nations Chiefs in council expressed their intention to reserve particular lands for their exclusive use and surrender the remainder for sale. As indicated in the report on the Council of 18 December, 1844 and reiterated in the petitions of 2 August, 1845 and 18 February, 1846, they agreed to surrender for sale the lands in the Martin and Johnson Settlements, the Oxbow Tract, and the Eagle’s Nest Tract, with the exception of a 200-acre block variously described as being in the vicinity of the Mohawk mission or school”. The Court took further comfort by the fact that Six Nations had never commenced a legal proceeding seeking the return of land or asserted title claims against the government or otherwise.
Based on the expert and other evidence, the Court found that any title claim to the land by, or the return of the land to, the Haudenosaunee Six Nations was “exceedingly weak”. Moreover, the Court held that the return of any of the lands would be barred by other legal principles (laches and bona fide purchaser for value without notice). In this regard, the Court stated as follows: “It was not until this case commenced that the Six Nations claimed to have the right to control the activities of private land owners on the basis that the private land within the City of Brantford belonged to the Six Nations. I conclude that such an argument must fail”. Accordingly, the scope of any duty to consult would be on the low end of the continuum. Arrell J. concluded that the proper notices to Six Nations were provided and other opportunities for consultation occurred, including a court-ordered mediated process over several months.
On the applications to quash the By-Laws, the Court found that: (a) the By-Laws were passed by the City in good faith and in full compliance with municipal law principles; (b) the By-Laws did not target the Haudenosaunee or HDI; (c) the By-Laws did not preclude lawful assembly and protest but sought to prohibit unlawful conduct; (d) the pith and substance of the By-Laws dealt with property and civil rights; and (e) there was no duty to consult prior to the passage of the By-Laws.
The decision strongly endorses and upholds the rule of law in the context of aboriginal blockades and work stoppages. There has been a tendency in recent years to describe such unilateral “self-help” measures as “protest”. The Court’s ruling makes it clear that there is a meaningful difference between legally acceptable and legally unacceptable “protest”; Neither the Charter, nor the Court of Appeal obiter comments in Frontenac, offer protection for unlawful conduct.
The ruling also reflects a clear application of Haida and the recently released Supreme Court of Canada decision in Rio Tinto Alcan Inc. v. Carrier Sekani Tribal Council. The duty to consult does not in and of itself create property rights and does not exist “in the air”. Rather, the duty is derived from an antecedent aboriginal title or treaty right that could be interfered with by proposed Crown action. If no antecedent right could be affected, then there is no duty to consult.
Although the issue whether a municipality ever could owe a duty to consult is not resolved in this ruling, the Court describes it as a “somewhat doubtful issue”. The finding that the strength of the Haudenosaunee claim is “exceedingly weak” could have ramifications throughout the Haldimand Tract and may provide comfort to other municipalities and private land owners within the Tract.