Ontario courts continuing to rule for developers over First Nation's traditional land protection
Judge bars natives from Hagersville development - Judge bars natives from Hagersville development
April 03, 2009 - Dana Brown - The Hamilton Spectator
A land developer building affordable townhomes in Hagersville has been granted an injunction barring Six Nations protesters from stopping work on the property.
Superior Court Justice Joseph Henderson also gave John Voortman and Associates Ltd. and its designates the power to use “reasonable force” to stop or remove trespassers from its property.
Voortman had asked the court to stop protesters from interfering with work on the site, declare the company had title and exclusive possession of the land and include provisions for dealing with protesters.
All three requests were granted today.
In his written ruling, read in court for 45 minutes, Henderson said Voortman had a “strong case” to show it legally owns the property and that it’s entitled “to exercise its rights as the property owner.”
“The arguments to the contrary are weak, and even if successful would not result in any change in the registered ownership of the property,” Henderson wrote.
He said the two recognized governing bodies of Six Nations have not made a claim for title or possession of the land and noted a legal action by the band council focused on revenue the community should have received from the land.
Henderson also said the duty to consult had been met and questioned the ability of the Haudenosaunee Men’s Fire to represent the aboriginal community.
“In my view the (Haudenosaunee Men’s Fire) is not well defined and its authority to represent aboriginal people is not well established,” Henderson wrote.
The justice also said the actions of the Haudenosaunee Men’s Fire “amount to both criminal and civil misconduct.”
The contested 2.4 hectare lot falls within the disputed Haldimand Tract, 10 kilometres on either side of the Grand River, and within the Hamilton-Port Dover Plank Road land claim.
Voortman bought the property in 2001.
In October, work was stopped after the arrival of a group of native protesters. Work subsequently resumed in December before protesters again returned to the property.
Last week, a representative of the Men’s Fire, designated to speak at the proceeding, reminded the court of two previous agreements reached between the Crown and the Haudenosaunee/Six Nations. He also warned that if the injunction was granted, the men would be duty-bound to take action.
John Voortman Jr., an officer of the company, said it’s his hope there will not be any ramifications.
“I hope that the natives understood everything that the judge said and that they will continue to pursue their case with the government,” he said.
“And that they now understand that their fight is not with us, it is with the government.”
The Men’s Fire had no representative available for comment after the proceeding.
dbrown@thespec.com
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