Land foes ordered to court

Paul Legall
Hamilton Spectator
CALEDONIA (May 30, 2006)

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A judge is demanding the OPP and province explain why they haven't enforced his order to end a native occupation of Douglas Creek Estates and lift the barricades on nearby railway tracks where protesters burned down a bridge last month.

Ontario Superior Court Justice David Marshall has taken the highly unusual step of ordering the OPP, the attorney general of Ontario, natives, the developers and other parties to a special court session Thursday to explain why his orders are being flouted.

It's not clear what effect it will have on the ongoing negotiations to end the dispute.

Osgoode Hall law professor Alan Young said he can't remember another instance when a judge has taken the initiative of pressing for the enforcement of his own order. He added judges usually assume their orders will be obeyed and maintain an "out-of-sight-out-of-mind" attitude toward enforcement.

"The reason for this unusual step is because there are injunctive and other orders of this court that remain outstanding," Marshall said. "The Superior Court of Justice has the ultimate responsibility to ensure that peace in the community is maintained under the rule of law -- hence this court calls the parties in order to further resolution of these matters."

In his ruling, Marshall referred to an injunction that Henco Industries Limited obtained in March to evict native protesters from Douglas Creek Estates and a separate injunction that Railink Canada Ltd. obtained from Marshall on May 4.

In addition to the OPP commissioner and the attorney general, Marshall has summoned lawyers for the developers, Railink Canada Ltd., the County of Haldimand and the Haldimand Law Society.

He has also called on the Six Nations elected band council and the traditional confederacy chiefs to appear. The judge notes, however, that the confederacy has not responded to the jurisdiction of the court.

Young said that the party who applied for the injunction -- the developers of Douglas Creek Estates -- would normally press for compliance. In this case, however, he believes Marshall may have seen himself as a party because the flouting of his orders would constitute contempt in "the face of the court."

"(Because the flouting) caused the disrespect to the court, you can get out of that passive shell and take the matter into your own hands," he said.

Young does not know if Marshall can require enforcement.

The OPP raided the subdivision on April 20 and briefly removed 16 occupiers. But natives surged back onto the land, forcing police off and beginning a month-long blockade that cut Caledonia in half. Protesters burned tires on public roads, shoved a van over an overpass and established barriers on the Highway 6 bypass and Argyle Street South that runs through Caledonia.

Shortly after the action, OPP deputy commissioner Maurice Pilon met privately with the protesters and assured them he had no immediate plans to stage another raid. Since then, the province and federal government have been involved in sporadic talks with natives.

OPP spokesperson Constable Laurie Hawkins said commissioner Gwen Boniface intends to comply with Marshall's order for her to appear. She added the commissioner recognizes the Douglas Creek dispute involves complex land issues between the First Nations and the government that police can't resolve.

"She'd like to remind the public the primary obligation of the OPP is to keep the peace and ensure public safety," Hawkins said.

Representatives of the natives behind the barricades did not return calls from The Spectator.

Brenden Crawley, a spokesman for the Ontario attorney general, said representatives from his ministry would also be making submissions to the judge.

John and Don Henning, who obtained the injunction to evict the protesters, were also ordered to attend. They stated that Henco (their company) did not initiate this court action. Neither would comment until after the session.

plegall@thespec.com
905-526-3385