Where a requested injunction is intended to create “a protest-free zone” for contentious private activity that affects asserted aboriginal or treaty rights, the court must be very careful to ensure that, in the context of the dispute before it, the Crown has fully and faithfully discharged its duty to consult with the affected First Nations: see Julia E. Lawn, “The John Doe Injunction in Mass Protest Cases” (1998) 56 U.T. Fac. L. Rev. 101. The court must further be satisfied that every effort has been exhausted to obtain a negotiated or legislated solution to the dispute before it. Good faith on both sides is required in this process: Haida Nation, p. 532.Just rec'd from a Brantford supporter: I was in court today, well actually 20 minutes ago, and the judge made the city of brantford pay for a certain motion that they bungled, $1200.00 plus other related costs and gst. They will be in court tomorrow. On a more interesting note I have been made aware of charges being laid very soon against, I repeat against, Brantford city council!!! Lets see how that turns out. The judge seemed quite agitated with lawyer Neal Smitherman and was losing patience. They tried to summons a negotiating employee of Indian Affairs her name is Murphy but that met with resistance from the judge! No one from the federal government appeared and the lawyer from the provincial government said he would not be prepared for tomorrow, but the judge didn't care and clearly stated that he had 3 to 4 months to prepare so all parties should show up tomorrow, unless there is 15 to 30 centimeters tomorrow, there will be no adjournment! ... It seems to me that the lawyers for the City of Brantford and the Province of Ontario are unprepared to present their cases. Hmm ... Looks like more stalling by governments. That's all they can do now is stall, and they are very good at that, but the court cannot grant the City of Brantford an injunction. In fact, no court in Canada can ever again grant an injunction against Aboriginal people who are asserting their Aboriginal Rights under the Constitution. Yup ... This is huge. No injunctions, no arrests, no early morning police raids of occupied sites ... no development, no mining, no logging, unless the rights of Aboriginal people are accommodated, to the satisfaction of the court. On this latter point, it is interesting to note the precedents in BC. When the province pulled the typical government move and coerced an Indigenous community into 'agreeing to agree in the future' while logging continued, the court did not accept the agreement, and ordered the province to stop the logging until a proper agreement was in place, accommodating the rights of the Indigenous community on their traditional land. Given the current economic circumstances, all three levels of government in Canada will have to engage in significant and meaningful negotiations, or all development can be stopped. The alternative, as pointed out by a Senate report: Negotiation or Confrontation: It's Canada's choice. http://www.parl.gc.ca/39/1/parlbus/commbus/senate/Com-e/abor-e/rep-e/rep05dec06-e.pdf Canada has already gone the route of confrontation, invasion of sovereign Indigenous territories being defended. Kahnesetake (Oka) 1990 http://www.youtube.com/watch?v=s55ccwPJgfs Kahnawake 1990 http://ca.youtube.com/watch?v=1coZQ7qKkt4 Six Nations, Caledonia 2006-2007 http://s163.photobucket.com/albums/t298/sireenaonthe6/?action=view¤t=NotReady2MakeNice.flv Video of the April 20 2006 OPP raid on Kanohstaton, based on Judge Marshall's injunction, is not posted as matters are 'still before the courts' as they say. However, the Supreme Courts are clear ... No more injunctions!
Monday, December 22, 2008
Update from Brantford Court re Six Nations, Aboriginal Rights The City of Brantford requested an injunction against Six Nations to prevent them from stopping construction. The injunction hearing is being held today and tomorrow. The Supreme Court, the final 'court of appeal' recently upheld the ruling that the court cannot grant an injunction until the Crown (Ontario) has fulfilled its duty to consult and accommodate Aboriginal Rights. The Brantford court is obligated to follow this ruling: