'Marshall Law' in Caledonia
** Justice T. David Marshall is 'the law' in Haldimand County where the Six Nations Haudenosaunee people are asserting their aboriginal rights, in accord with the Constitution of Canada. Their claim is for the Haldimand Tract, six miles deep on either side of the Grand River from source (near Orangeville) to mouth (Lake Erie), and includes land 'owned' by Justice T. David Marshall. This is part of their traditional lands, and was reserved solely for them after the American War of Independence. They are also asserting sovereignty as allies of the Crown, not subjects. They fought with the British against the Americans in 1776, and again in the war of 1812, where the Mohawk Warriors of Grand River turned them back at the Niagara River. They are allies of the Crown and sovereign people according to the treaties we signed with them, the treaties that define Canada and give Canadians the right to live on aboriginal land.
Jim Prentice, the Minister of Indian and Northern Affairs Canada referred to the Haldimand Tract as "... the oldest land claim in Canada", so clearly the government has been aware of the issue for a very long time, since 1841 with the first objection to the 1841 'surrender' of the Plank Road Tract. With benefit of knowledge of what happens still today, I know that the Confederacy signed an offer from the government, which the government of Canada still today calls "signing a final agreement", just to befuddle the Canadian population. But an offer is just an offer, and the offer goes to the people for ratification and it was voted down in 1841. Today, our government still "stands by" this unratified 'final agreement', because that is all Canada has.
The federal government has consistently failed to address the issue in any meaningful way despite letters of concern dating back to 1841, and 29 specific land claims submitted since 1979. Six Nations has been led on a merry dance of filing objections and claims, negotiating ad nauseam without result, finally, frustrated, Six Nations Band Council took the government to court ... for a few years ... then "Now ... let's explore this matter instead ... " ... on and on the dance goes, the government's purpose being to go nowhere. So ... with the backing of the Confederacy Clan Mothers, who hold the aboriginal title to the land, seventh generation leaders of the reclamation have reclaimed the land themselves and finally managed to engage the government in real negotiations, it appears so far.
There was an interruption just as negotiations were beginning, though, because Justice T. David Marshall granted the 'owners' and developers of the land a one-party injunction to remove the Six Nations people from the site, and thus no opportunity for Six Nations to respond. Justice Marshall is no dummy: He knew if they were allowed "fair procedure" via a normal two party injunction, they would respond by bringing up the issue of the Constitution and Aboriginal Rights and the Charter of Rights and Freedoms, the Human Rights Code, and all those 'interpretive' laws of the land that it appears he would rather just forget.
Justice Marshall lives in the Haldimand Tract, the disputed land. Justice Marshall, in fact, is a major 'landowner' in the Haldimand Tract. The Haudenosaunee people know the laws of the land better than he does. They attended the injunction hearing anyway. They spoke anyway. They told the Judge, through a lawyer, that they were claiming the whole Haldimand Tract and since he was a 'landowner', he had a conflict of interest and should recuse himself (withdraw). He became very upset, redfaced, excused himself and left the courtroom for a few minutes. Then he returned and granted the injunction. Justice Marshall did not recuse himself. He told the Haudenosaunee people present that the injunction would be enforced, but they would be given a chance to leave the site. If they did not leave, they would be arrested and summarily convicted - convicted on the spot with no opportunity to defend themselves in court. Again, the judge was making sure they had no opportunity to bring up that pesky issue of aboriginal rights.
The injunction took effect at 2 p.m., March 22, 2006. Haudenosaunee women and children and men lined the entrance to the reclamation site that day, but the police did not come in. For a month, the people on the site were subjected to helicopters and planes flying over the site, a huge buildup of OPP in town, including a tactical squad, news that hospitals were clearing wards in preparation, multiple ambulances parked strategically nearby, more busloads of police officers, repeated warnings from police that they were "coming in tonight", and many many other psychological tactics, but they did not leave the site.
Discussions had begun with the provincial government of Dalton McGuinty. Despite public distancing by Prime Minister Harper who called it "a matter for the police and the courts", discussions had occurred with the federal Minister of Indian Affairs and negotiators were being appointed. On April 16, the Six Nations Band Council voted narrowly, and historically, to turn negotiations for the reclamation site (Douglas Creek Estates) over to the Haudenosaunee Confederacy traditional government. On Tuesday April 18, Minister Prentice delivered the news that the federal government refused to negotiate with the Confederacy, and talks 'broke down'. Judge Marshall got (a phone call from Ottawa?) impatient and told police that if they did not remove the Haudenosaunee people from the site, he was calling them back to court to explain publicly why the court's order had not been implemented. The 'owners', Henco partners the Henning brothers, also pressured the OPP through the press with threats of court if they didn't act on their injunction. The Mayor again insisted they must be removed. (She still does.)
The OPP brought in more officers, more ambulances, more helicopter flights and the tension in the town was palpable. Later, the police said things had seemed to be 'ratcheting up' on the site. I was there April 18,listening to the drumming by the fire, talking to a Clan Mother. It was beautifully peaceful, or far too quiet ... like the calm before the storm. The only ratcheting up was done by the OPP. Later they also said "there were some New York license plates" as if that alone was a reason to attack. The Haudenosaunee Confederacy does span the border, and friends and relatives had been arriving.
Under pressure, the OPP enforced Judge Marshall's order, implementing the injunction by attacking suddenly with 150 Tactical officers at 4:45 a.m. on April 20, 2006. One youth and 5 white supporters were given a chance to leave the site, in fact chased off by OPP waving guns at them. The other youth there was dumped out of the hammock where he was sleeping, jumped on hard, and handcuffed. Fifteen mothers, fathers, brothers, sisters ... young women, some pregnant, kicked awake with guns in their faces.
They ran yelling, "We are supposed to be able to leave ! They told us to leave!" They were told by the Confederacy Council to leave the site in case of police invasion. They were chased by police in vehicles and on foot, tackled and brought down hard, men were tasered as they tried to help mothers, wives, sisters. One young man pulled out three tasers and threw them back, trying to attack the shooter, before the fourth finally brought him down: 200,000 volts of electricity. They were beaten if they struggled, and they all did. Some officers also sustained injuries. They were handcuffed and laid out on the ground, "all pretty badly beaten up" according to an eye witness, one of the people chased away who stuck around to witness, despite OPP threats.
150 officers to arrest 16 women and men and youths,
and they couldn't do it without beating them up?
Then they were put into police transport vehicles, taken to the station. Four men were left restrained in a closed van for 4 hours in the unseasonally hot sun. All were processed, finger printed and summarily convicted of contempt of court. One who gave his own name instead of the Canadian name assigned to his family in the residential schools, was held several days, was beaten, and had to spend a few days in hospital before he could be released.
Meanwhile, tactical OPP had control of the site after 5 a.m., with a few Six Nations people gradually appearing here and there to retrieve things, then a few more, then more and more as hundreds came quietly out of the bush from the back of the site, led by the women who linked arms and walked the OPP back off the land. A grandmother chased a police woman who retaliated, and the grandmother was taken down by five officers and badly bruised by their blows. Then her son and other Haudenosaunee men arrived, and the officers fled, the police woman redfaced, grabbing and gripping a highpowered rifle in her hands fiercely as they drove away.
By about 8 a.m., the Haudenosaunee Confederacy people of Six Nations had retaken the site. Police ran away so quickly they left prisoner transport and other vehicles behind. At that point, the young men came forward and smashed windows, etc, until officers returned to retrieve the vehicles and until they drove them away. The very last officer thought he'd try to give them an order to stop, and they had to chase the fool into the vehicle. That got a lot of press. Unfortunately, the press were not there to see the vicious police attack on unarmed and sleeping women, men and youths.
This is 'Marshall Law'. This is not the law of Canada. Judge Marshall "erred in law", failed to afford "fair procedure" and failed to acknowledge negotiation as the proper legal solution.
He implemented "force of law" when negotiation is always the legal solution, according to the Supreme Court. He violated their basic human rights under the Charter of Rights and Freedoms for not affording due process of law, and Constitutional aboriginal rights by not acknowledging the government's authority to negotiate as the legal solution.
Unfortunately the Ontario Court of Appeal identified Justice Marshall's errors in law too late to prevent the trauma, injury and terrorizing of 21 peaceful unarmed people asserting legal aboriginal rights by sleeping or sitting by the fire, on a muddy moonscape of a development site with its sacred topsoil scraped off.
