Brantford lawyers: city not obligated to consult with Haudenosaunee Confederacy Council it’s not legal governing body,

By Victoria Gray

Writer

BRANTFORD-The City of Brantford’s lawyers say the Haudenosaunee Chiefs Confederacy Council isn’t the legal governing body of Six Nations, so the city has no legal obligation to consult it when it comes to Arrowdale Municipal Golf Course’s sale or redevelopment.

During the second day of the hearing on anti-SLAPP motions on April 1, in the Arrowdale land defense, the City of Brantford argued Trevor Bomberry, who staged the defence from October 9 to December 31, 2021, was not authorized to speak on any matter pertaining to the Haudenosaunee Chiefs Confederacy Council (HCCC), Haudenosaunee people and the city isn’t obligated to consult HCCC anyway.

“HCCC is not the legally authorized representative of Six Nations to advance collective Indigenous rights. The elected band council is the presumptive legal, legally authorized representative of the Six Nations community,” Tracey Pratt, Brantford’s lawyer told the court. “HCCC is not the legitimate [governing body], elected band council is, so where it is appropriate to do so, the city engages the First Nation through elected band council.”

Pratt said the suggestion that the city was required to consult with groups other than band council has “no support in law.”

Bomberry, a 48-year-old Oneida man from Six Nations staged a land defense at the property from October 9 to December 31, 2021. He was charged with break and enter and mischief on January 11.

The city of Brantford is seeking a permanent injunction for the property on Stanley Street in Brantford, they are also seeking $75 million in damages from Bomberry, Kailee Poisson, president of Friends of Arrowdale, a citizens group committed to saving the golf course; Dan Oakes, of Friends of Arrowdale; Ron Heaslip, of director of Know Your City, which unsuccessfully fought in court the city’s decision to sell the Arrowdale property; Alexander Dawson and Kurt Hadowas Gibson.

On March 31 and April 1, Superior Court Justice Harrison Arrell heard two motions brought forward by Bomberry and Heaslip’s lawyers to strike down the injunction and to have the case dismissed based on anti-SLAPP legislation (Strategic Lawsuits Against Public Participation), which aims to protect members of the public from a financial power imbalance in favour of the plaintiff. They also argue the damages sought will deter others from protesting in the city.

On March 31 Bomberry’s Lawyer, Tim Gilbert argued the city has many more resources than any of the defendants and $75 million is not feasible for any combination of the clients, but it does serve to show the public not to get in the city’s way, when it comes to matters of public interest, least they want that kind of bill hanging over their heads as well.

Gilbert argued Bomberry’s only desire was to have the city follow the law and fulfil their duty to consult HCCC within its Indigenous community consultation process, as stated in the provincial Planning Act, the Environmental Assessment Act and the city’s official plan.

Pratt says the city isn’t obligated to perform an environmental assessment of the property to turn it into  a park, where Gilbert says, if the park includes wastewater systems, which it does, an environmental assessment is necessary. That act includes many different Indigenous groups in its consultation mandate, including other interested parties. Gilbert argued regardless of HCCC’s legal standing it is an interested party and the city views the Environmental Act improperly.

“[Miss Pratt said HCCC] aren’t proper representatives of anyone. That’s uncontradicted evidence, they are indeed viewed as a legitimate organization representing the interests [of Haudenosaunee people]. How do you read that out? How do you read that out on an Environmental Act process, which is meant to be expansive and inclusive? That’s what that act is about. It isn’t about exclusion, it’s about inclusion. If you think of the trouble this caused, it would be very helpful to have clarity on that point and not continue with process of exclusion,” he said.

Brantford’s lawyer Peter Downard agued Bomberry doesn’t qualify for the anti-SLAPP motion because he used threats of violence in his expression of protest against city contracted security guards after they entered the site. Gilbert says those security guard’s violated a Brantford police order for them not to enter the site.

In Heaslip’s case Downard says an interview with the media where Heaslip voices his support for the occupation and offers help through supplies and “anything they need,” shows collusion and conspiracy to keep the occupation going therefore “aiding and abetting.” He says that action won’t deter people from protesting, as long as they aren’t on the property.

Heaslip’s lawyer, Eric Gillespie argued that’s simply not true. After receiving the cease and desist order on November 13, Heaslip did not continue or go to the property.

“That conspiracy claim strikes fear into people. It means if they talk to anybody, the city can come after you for $75 million. That’s exactly it. He got the cease and desisted and stayed away, but then got dragged into this $75 million, massive litigation. All because he obeys. He stayed away and kept off the land, and didn’t trespass, and got sued for $75 million conspiracy, not for the trespass. That’s where the vulnerability is.”

Arrell has suggested mediation may be beneficial to the city “economically.” He asked counsellors to decide to engage in talks or not, by April 7. He will begin to deliberate at that time if mediation is not considered.

 

Add Your Voice

Is there more to this story? We'd like to hear from you about this or any other stories you think we should know about. Contribute your voice on our contribute page.