Several Six Nations activists face a hefty legal bill following a court judgement against them in a lawsuit filed by the City of Brantford over a 2008 injunction that prevented land claims protesters from halting work at development sites.
In a court order published late last month, Ontario Superior Court Justice Harrison S. Arrell ruled that protesters must pay the city $350,000 in court costs incurred during a 22-day hearing concerning Brantford’s injunction request.
Among those ordered to pay in Arrell’s decision is the Haudenosaunee Development Institute. Well-known land claims activists Floyd and Ruby Montour were also ordered to pay.
Arrell ruled that Brantford was “completely and totally successful” in arguing that two bylaws passed by city council were necessary to prevent systematic blockades of commercial and residential developments.
The city filed a legal bill of $887,000, which was reduced after Arrell deemed the city’s accounting of billable hours and hourly rates for legal counsel “somewhat excessive.” The judge also removed costs incurred during court-ordered consultation.
Brantford Mayor Chris Friel said the ruling is significant for the city.
“Now we have to make a decision as a council in regard to how we proceed,” Friel said.
Council will receive legal advice during an in-camera meeting on Monday regarding what approach the city should take to recover the money owed. Friel did not rule out an appeal challenging the judge’s reduction of the city’s legal costs.
Arrell ruled that $350,000 was a “fair and reasonable amount” to be paid to the city by the Six Nations respondents. He rejected the respondents’ argument that they were contesting an issue of public importance and therefore should not have to pay legal costs in defeat.
In his judgement, Arrell wrote that the primary motive behind the blockades “was to impose on private citizens (the protestors’) wishes in relation to private land in Brantford.”
Arrell said the case attracted “certain notoriety,” but did not serve to address the issue of land claims.
“Rather, the alleged issues of public importance were raised as attempts to justify what this court ultimately found to be illegal activities,” Arrell wrote.
Coun. Richard Carpenter, a member of city council when Brantford launched its injunction action in 2008, called the ruling a vindication of the city’s approach to protests.
“The taxpayers have paid $2 million for the injunction, which is working – that’s why you see development today,” Carpenter said.
Carpenter cautioned against seeing the issue through the lens of the city’s official relationship with Six Nations.
“The protests didn’t represent Six Nations, they represented the views of the protesters,” he said. “It’s not us against them.”
Friel advocates a more conciliatory approach to land claims issues.
“(The injunction) is a tool that’s available, but it is this council’s position that we should be finding solutions for the long-term through negotiations,” the mayor said.
The respondents have 30 days from the ruling date – Feb. 28 – to pay the city costs, pending an appeal.
Lawyer Jessica Orkin, who represented the HDI during the injunction hearing, declined to comment on the decision when reached at her Toronto office. The Montours and HDI staff were also unavailable for comment.