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Lawyer urges judge to force end to standoff

Paul Legall
Hamilton Spectator
CAYUGA (Jun 2, 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 Hagersville lawyer urged a judge to order the OPP to use force if necessary to end the native standoff in Caledonia and restore the rule of law.

Ed McCarthy, speaking on behalf of the Haldimand Law Association, said the community has run out of patience and children are losing respect for the OPP because they aren't clamping down on protesters.

"It's going to be seen in the eyes of the community as caving in to lawlessness," McCarthy told Justice David Marshall in Ontario Superior Court yesterday.

He said he had written the local OPP inspector and OPP Commissioner Gwen Boniface, citing what he considered serious criminal acts being committed by protesters at Douglas Creek Estates.

"We the people of Haldimand county are fed up with what we see," he told the judge.

"At some point, a line has to be drawn; at some point, a stand has to be taken for the rule of law," he added later.

He suggested Marshall could bring a quick end to the conflict by using his inherent jurisdiction to compel the OPP to enforce two injunctions against the protesters.

At the end of the day, however, no hard decisions were made except to hold another session in two weeks, June 16, with representatives of Indian Affairs Minister Jim Prentice and the Attorney General of Canada.

Denise Dwyer, representing the OPP, told court she found McCarthy's remarks "unfortunate, inappropriate and offensive."

She suggested his comments, which she described as "fighting words", could incite confrontation and make it more difficult for the OPP to keep the peace at the site.

Dwyer disputed claims the OPP wasn't upholding the law and noted they'd arrested 21 people during the April 20 raid. They're also investigating 25 other incidents, including destruction of a transformer station, and could lay charges of arson, mischief endangering life, kidnapping, break, entry and theft and assault.

She said the Douglas Creek Estates occupation is a symptom of broader land claims issues that the province is trying to resolve peacefully through negotiation.

She said using force to crush the protest in Caledonia would cause the problem to flare up somewhere else -- comparing the tough approach to the children's game "Whack a Mole."

Marshall called the special hearing yesterday to determine why the injunctions weren't being enforced and how the rule of law could be restored in the community.

The first injunction was obtained in March by the developer, Henco Industries, to have the protesters evicted from the 40-hectare site which has 10 homes in various stages of construction. Describing the action as a "land reclamation," the protesters started occupying the subdivision on Feb. 28 and now have numerous checkpoints, barriers and small camps strategically spread over the tract.

They redoubled their resolve to hold the land and set up an elaborate security system after the OPP made an abortive attempt to evict them on April 20.

Railink Canada Ltd. obtained the second injunction on May 4, claiming the natives had erected two barriers and were preventing their trains from using a rail line near the Six Nations reserve.

Marshall told the parties, "There's a great concern in the community that the rule of law has been suspended to some extent."

Those summoned included lawyers for the Ontario Attorney General and the OPP, Railink and Henco Industries, the Six Nations band elected band council and Haldimand County. McCarthy and another lawyer, Larry Elliot, both appeared as "friends of the court" to help the judge try to resolve the impasse.

Owen Young, a lawyer for the Ontario Attorney General, warned using force could create another Oka or Ipperwash, native standoffs that both resulted in deaths.

Like a number of other parties, including lawyers for Haldimand County, the Six Nations band council and Railink, he urged patience, communications and tolerance.

"We know that events can go bad...(let's make sure) Caledonia is not the next on the list," he said.

Darrell Doxtdator, representing the Six Nations band council, said the OPP appear to have learned from the 1995 standoff at Ipperwash Park.

A member of the OPP tactical team shot and killed native protester Dudley George during the dispute. The case has resulted in a protracted judicial inquiry examining police treatment of natives.

Michael Bruder, who represents John and Don Henning, said his clients are frustrated by the three-month-old occupation. But they've stopped short of asking the judge to compel the OPP to enforce their eviction order. Bruder said the brothers are concerned about the impact such a drastic measure would have on the community.

Outside the courtroom, he told reporters he was hopeful the province will offer to pay his clients fair market value for Douglas Creek Estates before the June 16 hearing. He said they'd invested heavily in the survey, their only current project, and stood to earn about $45 million from the project.

In summary, Marshall said the Caledonia protest had caused extreme damage to the native and non-native communities and the rule of law would have to be restored. If other efforts fail, he would consider ordering the OPP to remove the protesters.

"At some point, the court may be forced to do that. This is not the time to do that," he said.

Whatever happens will be done "with careful adherence to the right and proper procedure, I assure you."

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