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Concerns about rule of law in Caledonia

|Written By Helen Burnett

The recent progress made in the Caledonia, Ont., land claims dispute between developers and Six Nations may help to bring an end to the months-long protests in the region, but issues surrounding existing injunctions and the rule of law are ongoing.

At the latest Ontario Superior Court hearing into the dispute on June 16, the province announced that it had signed an "agreement in principle" with developer Henco Industries to purchase the disputed Douglas Creek Estates Property in Caledonia.

The move, according to David Ramsay, the minister responsible for aboriginal affairs, will take the issue of development off the table and allow for the federal and provincial governments and the Six Nations to progress with negotiations. The province will be holding the land in trust until the groups meet at the negotiation table to decide upon ownership and future use for the property.

Protests by members of the Six Nations over development of the Douglas Creek lands in Caledonia began several months ago and have involved blockades being set up on several roads in the area as well as a few violent incidents reported at the beginning of June.

In spite of the province's latest announcement, Ed McCarthy, a lawyer with McCarthy and Fowler in Hagersville and spokesperson for the Haldimand Law Association, says there are still some concerns.

"The issues arising out of the rule of law are still outstanding. As far as we are concerned, there are serious violations of a lot of the provisions of the Criminal Code and these things seem to be being overlooked by the police."

He adds that the police have made attempts to make arrests relating to certain incidents that have taken place over the last few weeks. Only a few arrests have been made.

But in many cases, protesters have refused to provide their names, appear in court, or acknowledge arrest warrants for protesters wanted in connection with some violent incidents a few weeks ago. They claim they are subject to their Great Law of Peace and not to Canadian law.

"The real concern that we have, and indirectly the public that we serve [has], is that the court's injunctions which order the protestors off the site haven't been enforced. They made an attempt once which was not successful, so the protestors are still on the site," McCarthy says.

However, the province's intended purchase of the disputed land also means that the developer would have no more interest or authority to enforce the existing injunctions, he says. It then becomes a question of whether the province will be prepared to enforce the outstanding injunctions, or not.

"Given the situation that [the province is] apparently in some serious negotiations with Six Nations, they are not likely going to want to enforce those injunctions, so that is a detriment as far as the community is concerned," he says.

If the deal for the disputed land between the province and the developer goes through, the court's ability to do anything about the outstanding injunctions will probably be largely removed, says McCarthy.

"As long as someone was around that was prepared to enforce the injunctions, then there was a hope of the court being able to do something about the allegations that the rule of law has been suspended. If there is no party around prepared to enforce those injunctions, then there is not much the court can do," he adds.

The Assembly of First Nations also responded to the rule of law issue in relation to the Caledonia dispute in a recent statement.

"It has been said that the rule of law must prevail. But the rule of law in this case is about more than protecting people and property, as important as that is. The fundamental legal issue here is First Nations land claims.

Land claims are legal matters and lawful obligations. They are unfinished business between First Nations and Canada," says the statement by AFN National Chief Phil Fontaine.

"Saying that the law must prevail in Caledonia and across Canada also means dealing with the legitimate, lawful claims of First Nations in a manner that is fair and just," says the statement.

According to McCarthy, the court will continue to monitor the Caledonia situation through a case conference procedure, which will allow those parties involved to speak with the judge periodically to let him know what is happening.

McCarthy says there could be an additional hearing arising out of the case conference procedure, but he does not foresee that happening at this stage.

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