Duty to Consult: Six Nations, Brantford Update Tuesday July 15 2008

The Kingspan construction site in northwest Brantford was quiet this morning following Monday’s arrest of a native protester.

About a dozen natives were outside the site today. The gate was locked and no construction was taking place. And... A man from Ohsweken has been released on a recognizance after he blocked a cement truck and resisted arrest at a Six Nations protest. 38 year old Dwayne Scott Maracle is charged with assault, resisting arrest, obstructing police, and mischief. The protest was at a construction site on Fen Ridge Court in Brantford, escalating when a protestor punched a police officer in the face. That man is still being sought for assaulting an officer... Background Six Nations has 29 land claims for "Aboriginal Title" as well as "Aboriginal Rights"throughout in the Haldimand Tract, including much of Brantford. Since the province of Ontario refuses to consult with Six Nations prior to issuing development permits for this land, Six Nations has repeatedly protested and shut down developments in Brantford, but some companies have continued trying to access the sites. Tonight Six Nations people are camped on the site, so there will be no further machines or work on the site. That's the plan. The City of Brantford recently applied for a permanent injunction against the protests, and was granted a temporary injunction only. Brantford Police tried to enforce that temporary injunction today, and failed to remove the Six Nations protesters, who now say they will stay on the site to ensure that no development occurs without consultation and agreement with them. It is the Crown's responsibility, the province. (but see below) Recently, a decision came down from the Ontario Court of Appeal on very similar situations. Relevant excerpts: Canada: Frontenac Ventures Corporation v. Ardoch Algonquin First Nation; Platinex Inc. v. Kitchenuhmaykoosib Inninuwug First Nation

14 July 2008

http://www.mondaq.com/article.asp?articleid=63390&login=true

Originally published in Blakes Bulletin on Aboriginal Issues, July 2008

On July 7, 2008, the Ontario Court of Appeal released two decisions related to sentencing of aboriginal protestors for contempt for breaching injunctions aimed at preventing aboriginal protests. Although the issue before the Court of Appeal in these decisions was the appropriate sentence for contempt of court, the court made several important comments about the duty to negotiate in the context of aboriginal protests. Most significantly, the Court of Appeal referred to the jurisprudence of the Supreme Court of Canada regarding the duty to negotiate, and found that whenever the interests of First Nations collide with private interests, every effort should be made to reconcile the private and aboriginal interests through consultation, negotiation and accommodation in a genuine attempt to resolve the conflicting interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction or legal proceedings.

The court considered arguments that had been made before it about the importance of the rule of law in Canada. The court adopted comments it had previously made in Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, in particular finding that the rule of law had several dimensions, one of which was the reconciliation of aboriginal and non-aboriginal interests through negotiation. The court expressed the opinion that when a court is asked by a private party to grant an injunction which may have an adverse impact on an asserted aboriginal or treaty right protected by section 35 of the Constitution Act, "such cases demanded careful and sensitive balancing of many important interests in accessing whether to grant the requested injunction and on what terms".

The court went on to explain how these interests are to be effectively balanced. The court stated that the clear answer could be found in the last 20 years of jurisprudence of the Supreme Court of Canada and in particular the requirement for consultation, negotiation, accommodation and ultimately reconciliation of aboriginal rights and other important, but at times conflicting, interests. The court cited the long line of Supreme Court jurisprudence beginning with R. v. Sparrow, including Haida Nations v. British Columbia (Minister of Forest), Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), and Mikisew Cree First Nation v. Canada (Minister of Heritage). The court found that this clear line of jurisprudence required that where constitutionally protected aboriginal rights are asserted, "injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests". The Court of Appeal cautioned in particular that if the injunction is intended to create a "protest free zone" for contentious private activity that impacts upon an asserted aboriginal right, the court must be extremely careful to ensure that the duty to consult with the First Nation has been fully and faithfully discharged and that every effort had been exhausted to obtain a negotiated or legislated solution.

...

The Court of Appeal made a clear statement in Frontenac that it would no longer be acceptable for private parties to seek injunctions as a first response to prevent protest action by First Nations with legitimate aboriginal rights or land claims.

... The Court of Appeal applied the Supreme Court of Canada's established jurisprudence and held that there is a duty on the Crown, as well as private parties, to negotiate with indigenous communities in order to resolve conflicting interests. Following these decisions, it will be increasingly important for private stakeholders in Ontario with an interest in property over which an aboriginal rights claim has been asserted to be cognizant of, and sensitive to, those indigenous interests.

Six Nations, Brantford: Protester arrested at northwest construction site

Posted By John Paul Zronik

Six Nations protesters promised a full-fledged land occupation in Brantford following the arrest of a native protester by city police on Monday. "They're going to have one hell of a fight now," said Steve Powless, who spoke on behalf of the protesters. "This is going to be Caledonia Part 2. They don't understand what they're in for." Police made the arrest near a site on Fen Ridge Court in the city's northwest business park, where Kingspan Insulation is in the process of constructing a new headquarters and warehouse facility. Six Nations protesters say the land is under claim. The chain of events leading to Monday's arrest began at about 8:30 a.m., when two concrete trucks carrying loads to the Kingspan site were blocked by protesters. The trucks left, but returned a second time at about 9:45 a.m. in an attempt to get on the site. When a protester again attempted to block the trucks, he was confronted by police. A struggle took place and the man was later arrested and charged with assaulting police with intent to resist arrest and obstructing a police officer. The man's identity has yet to be determined. In a media release, city police said officers were attempting to facilitate access of the two trucks to the Kingspan site when one protester disobeyed officers' direction and stood in front of one of the trucks. When officers moved in to arrest the protester, he punched an officer in the face, police said.

Posted By Derek McElveny, chief of police

Posted 8 mins ago

"We are extremely disappointed that the peace was not kept during the protest today. Our officers were performing the duties that they are sworn to perform; to keep the peace, protect the public and enforce the laws. Our police service has a duty and responsibility to enforce court orders and, until today, our continued professionalism has garnered mutual respect that has resulted in peaceful protests. Today, the actions of a few protestors resulted in two of our officers being assaulted and other persons being threatened. The Brantford Police Service expects that any protest conducted in Brantford by any group is done so in a peaceful manner that complies with the laws of Canada and orders issued by our courts. Community, Provincial and Federal leaders are encouraged to exert their influence over their respective members to ensure the safety of our community is preserved and these land claim issues are resolved peacefully and expeditiously. The Brantford Police Service should not be perceived to be a solution to these long standing and complex land claim issues. Long term and long lasting resolutions to these claims can only be achieved through meaningful negotiations by the various levels of government and Six Nations Community Leaders who have the authority and will to resolve them. "– Derek McElveny, Chief of Police, Brantford Police Service

Peace returns to Kingspan site following native's arrest

Updated 1 hour ago

All was quiet at the Kingspan site this afternoon. At about 9 a.m., police arrested a native who blocked a cement truck from entering the constructon site in northwest Brantford. Two hours later, workers and equipment left without entering the site. At about noon, police removed barriers they had put up on roads to keep the public away from the site.

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I expect that's it for that construction site. I doubt the developer will make any further attempts to get on the site. I certainly hope not. That would be just foolish. Canadians abhor violence in the streets above all else, and to a fault. "They're going to have one hell of a fight now," said Steve Powless, who spoke on behalf of the protesters. "This is going to be Caledonia Part 2. They don't understand what they're in for."

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I just don't think they are leaving until somebody consults with them about this development. It seems to conflict with their plans, and their rights. And clearly SOMEbody has a legal "duty to consult" with them. It's Ontario's response we are waiting for. So far Ontario has only interfered with negotiations by telling developers not to negotiate with Six Nations. That's why people are getting hurt in Brantford today. How does that fulfill the Crown's Duty to Consult? How does that attract business to Ontario? It is interesting that these Judges told "private parties" their "duty ... to negotiate". This hasn't been spelled out before, though it's always indicated that "private parties" must play a role. would no longer be acceptable for private parties to seek injunctions as a first response

there is a duty on the Crown, as well as private parties, to negotiate with indigenous communities in order to resolve conflicting interests.

Following these decisions, it will be increasingly important for private stakeholders in Ontario with an interest in property ... to be cognizant of, and sensitive to, those indigenous interests.

That means if private companies follow the court's order, they have to disobey Premier McGuinty, who told them not to "consult, and accommodate" Six Nations interests.

I wonder which way they will go tomorrow morning?

Will Kingspan and Ontario and Brantford consult with Six Nations and accommodate their legitimate interests in the land?

Because it is pretty obvious that every effort HAS NOT BEEN "exhausted to obtain a negotiated or legislated solution".

In fact, no one has even talked to Six Nations Confederacy about their legitimate interests in that land.

KINGSPAN IS TOO DAMN BUSY TRYING TO RAM THEIR CEMENT TRUCKS THROUGH THE PEOPLE LINE!!!

I expect it was a youth they confronted. They always run fastest to stop the trucks.

No more of that tomorrow, KINGSPAN. Tomorrow you send the big cheeses to negotiate civilly, like the judges say. Talk civilly with the Elders. Don't attack the youth. Ever again. Canadians abhor violence against young people in the streets, by KINGSPAN thugs hiding in big trucks.