Judge continues hearing

Protester claims his land ownership constitutes conflict of interest

Paul Legall
The Hamilton Spectator
Cayuga (Mar 17, 2006)

[SISIS note: The following mainstream news article is provided for reference only, as an example of how mainstream media treats indigenous resistance to genocide. Mainstream media often presents biased and distorted information, lacking pertinent facts and/or context. Inclusion of this article on our site should not be considered an endorsement by SISIS.]

A veteran judge was accused of conflict of interest because of the property he owns and was asked to refrain from hearing an injunction to remove native protesters occupying a building site outside of Caledonia.

But Superior Court Justice David Marshall declined to recuse himself from the case and continued hearing arguments about how to enforce the injunction at the Douglas Creek Estates where the protesters have stopped work since Feb. 28.

"The question is about contempt of court (for flouting the injunction); it's an important issue. It's not about ownership of the land," Marshall said in response to a motion to remove him from the case.

"I've come to the conclusion there is no reasonable apprehension of bias. Hence, I intend to hear the case."

Native activist Dawn Smith, 31, had raised the issue at the beginning of the injunction proceedings in Cayuga court yesterday.

She asked Marshall, 66, to recuse himself from the case because he owns properties in the Haldimand tract that was granted to the Six Nations in 1784.

The tract covers an area 10 kilometres on each side of the Grand River from the mouth to the source or about 385,000 hectares.

Six Nations natives now occupy less than 5 per cent of the area and claim the rest was stolen by non natives.

"How can you decide an issue when you're in conflict of interest?" Smith argued.

She told the judge that the issue of land ownership is central to the Douglas Creek Estates protest.

"The land we feel is ours. We feel we have a right to be there," she said.

The protesters claim the residential development is on land that was stolen from them and is still part of Six Nations territory.

When they moved in on Feb. 28, they strung a large banner between two lamp posts at the subdivision entrance proclaiming "Six Nations Land."

Smith argued the Douglas protest will set a "precedent" affecting other properties "up and down the Grand River."

"It's right in your back yard," she told Marshall.

"It comes down to the basic question of who owns the land," she added later.

In his ruling, Marshall stressed the hearing was to determine the narrow issue of how to enforce the injunction which was issued by another judge on an interim basis on March 3. Last week, Marshall made it permanent and adjourned the case until yesterday to decide how it could be enforced .

In his decision to stay on the case, he said nobody had presented evidence to show he was in conflict of interest.

"The land I own was acquired through the legal system...it's the only legal system we have here," he said.

He said almost all the other local judges own land in the Haldimand tract too because it covers such a massive area.

Smith held an eagle feather -- a sacred object in native culture -- as she listened to Marshall's ruling. Clearly disappointed, she challenged his authority to preside over cases involving native land claims or to enforce the injunction.

She said she wouldn't be able to defend herself if she's cited for contempt of court because she doesn't recognize the jurisdiction of local courts.

"I will refuse to defend myself in provincial court ... if I came in this court and gave evidence, it would assimilate me," she said.

She left the courtroom before lawyers started debating the enforcement of the injunction, which will affect her and dozens of other protesters.

Marshall is expected to make a decision when the case resumes today.

Meanwhile, dozens of protesters continued to occupy the Caledonia site yesterday evening. They had recently erected a sign near their barricades stating in bold red letters: "OH CANADA YOUR HOME ON NATIVE LAND."

plegall@thespec.com
905-526-3385