Judge orders minister to Cayuga court

Karen Best - Staff Writer
Dunville Chronicle
Local News - Wednesday, June 07, 2006 @ 05:00

[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.]

Jim Prentice is willing to come to the Ontario Superior Court of Justice in Cayuga if his attendance is required.

"The minister will be fully compliant with anything the judges ask or requests of him," said Deirdra McCracken. She is the press secretary for Prentice who is the Minister of Indian and Northern Affairs Canada.

On June 1, Justice David Marshall decided to call Prentice and Canadian attorney general Vic Toews to court on June 16. Based on advice heard at a special hearing at the beginning of the month, he is asking the federal ministers to get involved in the Caledonia and Six Nations situation.

As of June 6, Prentice and Toews had yet to receive a letter or court order inviting them to be of assistance to the judge as a friend of the court. "He has not seen a formal request as of yet," acknowledged McCracken.

The request for federal involvement in the return of law in the community arose out of a hearing called by Marshall. In an rare move, he requested the presence of representatives of the OPP, Henco Industries, Railink, the Ontario attorney general, Six Nations band council, Six Nations Confederacy council and Haldimand County. The Confederacy chiefs, who do not recognize the court's jurisdiction, did not attend.

After several hours of presentations, Marshall also decided to set up a case management file that will facilitate conferences between himself and lawyers of the interested parties.

Amongst a heavy police presence, Haldimand County residents and politicians, Six Nations residents, lawyers and media representatives listened to the proceedings which squarely centred on the enforcement of law. Marshall's injunctions and contempt of court orders stand but are not acted upon, he noted. In March, Marshall ordered Six Nations persons and others to leave the Douglas Creek Estates subdivision in Caledonia. When they did not, he found them in contempt of court and arrest warrants were issued.

"The Superior Court of Justice has the ultimate responsibility to ensure peace in the community is returned under the rule of law," said Marshall. He asked attending lawyers for their assistance to achieve this end.

While the OPP's lawyer attempt to silence Hagersville lawyer Ed McCarthy failed, he was flattered by their desire to do so.

With the permission of Marshall, he began a spirited oration of community concerns. Speaking as a representative of the Haldimand Law Association, he said local lawyers were very concerned about property titles in the county. "Lack of OPP action implies something is wrong with these titles," said McCarthy.

When he said Six Nations people were not politically organized with one voice and that they did not have clout because they did not vote, Darryl Doxtdator expressed objection. Reconciliation is underway to reconnect the Six Nations community, he said. He is the political advisor to Six Nations band chief David General.

After Marshall ruled McCarthy's comment as inappropriate, the lawyer said police responsibilities, along with keeping peace, include preventing crimes, which should have happened on the first day of occupation. What's going on almost falls under the drastic section of terrorism in the Canadian criminal code, he added.

McCarthy urged the judge to force OPP to discharge their responsibilities. "It may require the use of force. At some point a line has to be drawn. Something very significant has to happen to bring this to an end, " he stated. "We the people in Haldimand County are fed up with the whole thing. Bring it to an end forthwith. If it is is violent, so be it."

Later Denise Dwyer, representing the OPP, said McCarthy's words were "unfortunate, inappropriate and offensive" and were "fighting words". Michael Bruder, who represented Henco, also asked the OPP to enforce the law.

In reply, Dwyer, who was representing OPP commissioner Gwen Boniface, said the law was enforced and court orders were followed. She said OPP need to exercise their right to discretion for their safety and the safety of the public in the face of "a very volatile protest". She was willing to provide the judge with high level information on police actions.

"We're here to find out what you're doing and why you're doing it," said Marshall. "The rule of law to some extent has been set aside. Give us your reasons."

After conferring with her client, Dwyer listed police activities since March 3. Twenty-one arrests were made on April 20 when police entered the subdivision. Police are investigating arson at the Caledonia hydro transformer station.

On May 22, six people were arrested for their own safety. In total 25 criminal charges are under investigation including mischief endangering lives and assault with a weapon.

Railink which operates Southern Ontario Railway through Caledonia, has sought a peaceful disengagement of barricades on their rail line. On May 4, the company secured an injunction ordering people and materials off the line. One fifth of its 45 employees have been laid off because the train is not running out to Nanticoke.

Doxtdator spoke about rising levels of frustration and successful efforts in keeping calm at Caledonia rallies. If the judge receives information directly from OPP and provides weekly or bimonthly updates to the community, the public will receive accurate information, something he felt was not provided by most media.

Haldimand County lawyer Woody McKaig advised the judge to let the process unfold as did Dennis Brown of the Ontario Attorney General office. Lawyer Lawrence Elliot, who was acting as a friend of the court, said it was in no one's interest to undermine attempts to resolve short and long term land issues. However the status quo cannot continue indefinitely, he added.

With Marshall's permission, Six Nations resident Jan Longboat addressed the court. She said her people have a community based social structure that considers everyone members of a big family. Knowledge of this belief might alleviate apprehension and tension in people's minds, she said. "I think the OPP is doing their job to the best of their ability," she added. Several people in the gallery disagreed.

Owen Young of the Ontario Attorney General office said the rule of law has been suspended not abandoned, and suggested all parties allow time and distance to temper emotions. Patience is difficult to maintain but is essential in keeping Caledonia off the list that includes Oka, Ipperwash, Akwesasne and Gustafson Lake, he said.

In a long dissertation, Young pointed out that law encompasses customary law and aboriginal law. He referred to the Canadian constitution's Section 35 which he said safeguards treaty rights and customary laws. This section is the foundation of an evolving relationship between the federal government and First Nations, he noted. Over time, people will appreciate that the rule of law exists and that the government short and long term actions preserve and maintain the rule of law, he said. Section 35 allows Canadian and aboriginal laws to be fused together, Young continued. He advised Marshall to refrain from intrusive action and to monitor the process.

Doxtdator commended the police for learning from Ipperwash, where a First Nations man was shot by an OPP officer. "We have avoided that so far in Caledonia," he added.

Bruder categorically disagreed that OPP enforced the injunction and said Henco wanted this resolved and the arrests warrants acted upon. Later he said the Hennings were waiting to receive confirmation in writing that the Ontario government would purchase the subdivision at fair market value. The potential full value for the 600 lot property is $45 million and should be factored in the purchase price, he said. Henco will not agree to the construction moratorium while they own the property but will drop the injunction of the Ontario government purchases it, said Bruder.

The Hennings have held back from demanding the court to order police to act. "There's our interest and the interest of the community. They live there. They care about Caledonia," Bruder said of their preference to avoid going that route.

"This community will return to the rule of law completely. It's a question of what happens in the interim," stated Marshall. He intended to return things to normal in the community and at some point may be forced to issue an order for OPP to act. "This is not the time," he said deciding to call another hearing for June 16.