On April 3, 2009 the Ontario Superior Court of Justice granted an interlocutory injunction in favour of the plaintiff John Voortman & Associates Ltd. ("Voortman") against the defendants the Haudenosaunee Confederacy Chiefs Council and the Haudenosaunee Men’s Fire of the Grand River ("HMF") restraining them from entering the plaintiff’s property and from obstructing the property’s development.1
Voortman purchased the property in Hagersville, Ontario in 2001, with its title tracing back to the Crown patents of 1849 and 1850. The property is 6 acres on which Voortman intends to build 46 townhomes. Henderson J. noted that there are no "woodlands, rivers, streams, or bodies of water" situated on the property.2
In early October 2008, a group of 8 to 10 aboriginal persons (the HMF) began protesting at the property’s construction site as it was being cleared for development, they interfered with and prevented construction from occurring and advised Voortman that the property was "aboriginal land" and that the protests would continue until construction ceased.3 On the same date, Ontario Provincial Police ("OPP") were at the construction site but refused to remove the aboriginal protestors from the property unless a court order required such removal.4 As a result of the protests, construction ceased at the property until early December 2008 after Voortman received a letter from the Six Nations Council (the elected government of the Six Nations First Nation) stating that they did not condone the activities of the HMF or the Haudenosaunee Development Institute.5 Soon thereafter, another incident involving 8 to 10 aboriginal protestors occurred at the property. Between this protest and a subsequent meeting with the Haudenosaunee, it became clear that the protestors would continue to occupy the property and obstruct construction and development of the site.6
Henderson J. summarized the HMF’s claims as (a) the Six Nations assert that they have a legal claim to the property, (b) Voortman does not possess legal title to the property, and (c) the Court does not possess the jurisdiction to impose injunctive relief because the Crown has not consulted with the HMF and the Haudenosaunee regarding the property. Henderson J. dealt with each of these issues.
On the issue the Six Nations’ claim to the property, the Court cited the 1974 Ontario Court of Appeal decision of Isaac v. Davey7 which held that the Haldimand Proclamation and Simcoe’s Patent did not vest title in the lands to the Six Nations.8 Henderson J. concluded this part of his analysis by stating "I find that there is no merit to the suggestion that the Six Nations people have a right of ownership of the property" and that the appropriate remedy, in the case of a successful claim, would likely be compensation from the Crown.9
On the issue of whether Voortman had a valid property claim, Henderson J. noted that Voortman has a strong case that it is the legal owner of the property and entitled to all the rights associated with such ownership and that even if the Six Nations’ claim was successful it would not result in any change of the "registered ownership of the property".10
Finally, on the issue of consultation, the Court found that the Crown had a duty to consult the Six Nations Council. The Court held that the Crown adequately consulted with the Six Nations Council and the Six Nations Chiefs, but had no obligation to consult with the HMF, given that the Court had not received "any cogent explanation of the relationship between the HMF and the Six Nations Chiefs or Council."11 Henderson J. also stated that the consultation in this case was at the low end of the spectrum and that the duty to consult required a notification of the proposed sub-division and listen to, but not necessarily agree with, the Six Nations Council’s concerns.12
The Court found that Voortman established that a serious question that needed to be tried given that the actions of the HMF amounted to both criminal and civil misconduct by interfering with Voortman’s property rights and characterized their conduct as nuisance, trespass, extortion, intimidation and inducing breach of contract.13 The Court held that the issues of irreparable harm and balance of convenience favour Voortman (thereby meeting the test required for the granting of injunctive relief).14
Henderson J. ended his reasons by providing a brief discussion on the rule of law and its applicability to aboriginal peoples. He wrote:
All people in Canada are governed by the rule of law [...] That is, all people in Canada are required to obey the law. As a corollary, all people in Canada are entitled to know that every other person in Canada will be required to obey the law. If any person in Canada does not obey the law, the courts will enforce the law. In that way the public has some assurance that they can live in peace without fear of those who might choose to disobey the law.
In the present case the representatives of the HMF delivered a message to this court that they did not accept the court process. Moreover, there was a veiled threat that if an injunction were to issue the HMF would have no choice but to continue their tactics of intimidation and criminal and civil disobedience. That threat does not alter or affect my decision today. [...]
The rule of law means that the HMF will be required to obey any court order, just as any person in Canada would be required to obey a court order. The assertion of an aboriginal right does not permit any person, aboriginal or otherwise, to break the law.15
The Court concluded by issuing an interlocutory injunction restraining the defendants from entering and from obstructing the development of the property. A declaration was also made the Voortman has title to, and is the owner of, the property. Henderson J. stated that the order will be enforced by the Sheriff, with the assistance of the OPP and that Voortman or its designates can use reasonable force to prevent trespass on the property or remove any person from the property.16
This decisions affirms a number of other judicial decisions which stand for the proposition that private property owners are generally entitled to the quiet enjoyment of their property in the face of aboriginal claims to such property and that in the face of successful claims to such private property the likely remedy is not against the private property owner but rather against the Crown in the form of compensation.17
Also noteworthy from this decision is the Court’s discussion regarding the applicability of the rule of law to disputes involving aboriginal peoples and the application of the standard test regarding the imposition of injunctive relief.
Finally, the decision confirms in this case given the evidence, that the elected band councils and the traditional Chiefs, and not the HMF, were the appropriate parties for consultation purposes.