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Talks aimed at resolving issues related to the occupation of a housing development by Native protesters in Caledonia, Ont. have resumed after a 10-day period of confusion caused by a judge's order.
On Aug. 8, Justice David Marshall of the Ontario Superior Court ruled from the bench that government agents involved in negotiations to end the land question on which the dispute at Six Nations is based "withdraw from these negotiations" until court orders demanding protesters leave Douglas Creek Estates "are respected and the rule of law returned and the barricades removed."
The ruling caused the fur to fly in legal and political circles, and in the occupied area where Native land claims protesters have been since late February.
In an indication of just how serious this matter was seen to be, an application to the Ontario Court of Appeal for a stay of Marshall's order was scheduled for Aug. 22, a mere two weeks later. What occurred in the time in between has many observers scratching their heads.
To understand the situation completely, one must go back to March 17 when Justice Marshall found the protesters in criminal contempt and ordered them to leave the land.
"The fact that the Douglas Creek property is still occupied by protesters and remains under blockade in spite of a court order and after many months, with no appeal taken to the order, is strong evidence for many that the rule of law is not functioning in Caledonia," he said on Aug. 8.
Marshall rejected arguments by the Ontario attorney general's representatives that he had reached the limits of his jurisdiction once he made the contempt finding, saying he "has not only a right but an obligation to continue."
He took note of the frustrations that led Six Nations people to occupy the housing project on disputed lands at the edge of the reserve.
"However, it is common knowledge that the people of Caledonia, after five months of occupation, have seen security in their town replaced by lawlessness; protesters in battle fatigues, police officers in riot gear and uncertainty of their future," he said.
Marshall said that all members of society, including government officials "should respect the lawful orders of the court." But shortly after he made his comments from the bench, Justice Marshall began to back away from the decision. A number of conference calls with legal counsel preceded the release of the formal, written version of his order on Aug. 18.
That short, one-page decision contained no mention whatsoever of the negotiations. The judge ordered that the attorney general take over responsibility for the contempt matter, but he stated that he would "remain seized" or would supervise that process until it was resolved.
He also ordered that, since the province had purchased the disputed lands from developer Henco Industries, the injunction he had granted to Henco to have the protesters removed would be dissolved, but only after the attorney general had dealt with the criminal contempt issue.
Four days later at the appellate court, observers say the three-judge panel expressed a certain amount of confusion as to what all the fuss was about. They had been asked to stay an order asking for land claim negotiation to cease that the judge's formal order didn't mention.
The appeals court did decide to limit any possible contempt charges related to the occupation to before July 5, the day the province purchased the lands from Henco, so that the threat of contempt findings would not interfere with the negotiations. The attorney general had argued that the talks could not continue if the Six Nations representatives faced the threat of criminal charges merely for occupying the land.
The appeals court was prepared, since the oral "suggestion" that negotiations cease was not included in the Marshall's final written order, to simply move on and not deal with the matter. But the Six Nations elected council representative at the hearings raised the issue of the negotiations withe appellate court, observers say. Darrell Doxtdator, senior political advisor to elected Chief Dave General, pointed out that the direction to cease negotiations was widely covered in the media and needed to be addressed.
"Judge Marshall, being an individual in the community, was trying his best to help the situation. However, his heart ruled the day and unfortunately there were some areas that the appellate court had to address," Doxtdator said in a phone interview.
James O'Reilly was appointed by the appellate court to advise on the Aboriginal perspective. As a 40-year veteran of the legal fight for Aboriginal rights, O'Reilly's first move was to visit the occupation site and speak with the people there.
"They didn't want to approve or disapprove [of his role], but I think that quite a number felt that it might be useful to try to educate the court in Canada's own laws. And even though they don't recognize that they're bound by Canada's laws, they thought it might be useful for somebody to tell them that Canada's laws do recognize substantial Indian rights. I didn't have an endorsement [from the occupiers]. I didn't look for an endorsement, but I didn't sense that people felt that that would be a useless exercise," O'Reilly said.
O'Reilly said the court noticed that Marshall's written order was different from his oral order.
"Justice Marshall's reasons are not the same as what he actually ordered and that struck the court right away," he said, and for 10 days the future of the negotiations was in doubt.
"I think that when Justice Marshall reflected upon it, he decided he gave a lot of opinions but he wasn't prepared to say that this was going to be an order. So there was confusion during that period of time for sure. The court of appeal certainly made it very clear that negotiations should continue," O'Reilly said.
The appeals court issued an endorsement on the spot on Aug. 22.
"Despite what Justice Marshall said in his reasons of Aug. 8, 2006 he did o nclude in his final order a direction that the parties cease negotiations. Thus in our view the parties should be free to continue to negotiate if they choose to do so without fear of being in breach or contempt of a court order. To be clear the order of Justice Marshall does not preclude continued negotiations," the endorsement read.
More discussion about the merits of other aspects of Marshall's decision will take place when the actual appeal, not a stay, is held on Sept. 25, particularly Marshall's order that the attorney general report to the justice on his ministry's progress in the contempt proceedings.
O'Reilly took issue in open court on Marshall's discussion on the rule of law, saying Aboriginal rights are constitutionally enshrined and the delay in settling land claims is contrary to the rule of law.
"That I thought was a narrow view of what is the law and that I think was something of a debate, but when you talk about the rule you have to be talking about giving respect to Aboriginal rights and constitutional duties to negotiate and accommodate. That was one of the first things that hit me when I was considering whether to get involved in this or not."
Several legal sources said Marshall's rare move of calling the parties into court to have them explain what was being done in regard to his order was potentially troublesome because it created a precedent that would require all judges to follow up on all orders rather than allowing those with the responsibility to do the job within their own jurisdiction.
"The appellate court didn't really go too far on that," O'Reilly said. "They didn't see anything wrong with having people report back to the court, but they were reluctant, I think, to say that the court could supervise the implementation of the orders in a way that might interfere with the prosecutorial functions of the Attorney General. So that's going to be a big debate on Sept. 25."
But the lawyer sees the whole Marshall matter as a judge exeein the limits of his jurisdiction.
"I shouldn't tell you this, but anyway I said it in open court. In effect what Justice Marshall was doing was he was being the prime minister, he was being the strategist, he was being the general of the army and he was being the court at the same time," he said. "I said he can't do all these functions. It's not the court's job to decide whether the police get called in or whether the army gets called in or whether all parties should come roaring in or whether there should be a royal commission. It's a fine line between what are the legislative, executive and judicial functions. This went to the heart of the separations of powers in our constitutional system. He basically felt that It's the court's duty, ultimately, to uphold the law. Well, that's true to a certain extent but the courts have never had the machinery of enforcement. If that changes are we going to put the armies or the provincial police under the control of the courts?"
O'Reilly said he could understand Justice Marshall wanting to push the envelope in his search for a solution to the impasse.
"Here's a judge who's frustrated, maybe for very valid reasons, but he has to be constrained by our Constitution. The judicial powers are extremely wide but have to be exercised very judicially," he said.
Chief General welcomed the decision that talks could resume. He informed Windspeaker that he will join his council's representatives at the table from now on.
"The appellate judges recognized the urgency of the situation and promptly made their decision. In the endorsement on that day, repeated in their subsequent written decision, the appellate judges removed any impediments, perceived or actual, that may have prevented the talks from continuing," he said in a e-mail response to questions.
General said the talks, which resumed the day after the appellate court cleared the way, are now progressing.
"Both the federal and provincial governments indicated that they wer
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