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Brantford Blockade By-laws Upheld

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Aboriginal Law Bulletin

The Ontario Court of Appeal recently upheld two by-laws passed by the City of Brantford (Brantford). These by-laws were enacted in 2008 when various development projects across the City faced blockades and work stoppages. The Court upheld the by-laws and, with minor revisions, found that they were a constitutional approach to addressing the unlawful activities of the so called “protestors”.

Brantford comprises lands which the Haudenosaunee claim were never surrendered. In 2007, the Six Nations’ hereditary (vs. elected) leadership, the Confederacy Council of Chiefs, established the Haudenosaunee Development Institute (HDI). HDI’s mandate was to regulate the development of all land within the “Haldimand Tract”, of which Brantford is a part. HDI purported to have the jurisdiction and authority to approve development within Brantford. HDI required that developers apply to it for permission to develop private property and submit the applicable application fee. When several developers refused to comply with HDI’s demands, the HDI and its supporters blockaded those development sites, obstructed public rights of way, and forced work stoppages. By the Spring of 2008, these unlawful activities were occurring within Brantford on an almost daily basis.

In May 2008, the Brantford City Council (the Council) responded by passing two laws: by-law 63-2008, which prohibited unauthorized interference with development and construction on private property; and by-law 64-2008, which prohibited the imposition of unauthorized fees or other conditions for development. The Council discussed these two by-laws with its solicitor at a meeting behind closed doors, and then, in a brief open meeting, passed them unanimously, without discussion.

Brantford subsequently sought an injunction to restrain HDI and its supporters from engaging in work stoppages and other unlawful activities. HDI and others opposed the injunction and applied to quash the by-laws. The application judge granted Brantford’s injunction and dismissed the applications to quash. Leave to appeal the injunction was denied. HDI and others appealed the dismissal of their applications to quash the by-laws to the Court of Appea‎l.

The appeal was heard by Laskin, Doherty and Simmons JJ.A. The appeal raised four issues: (1) Did the application judge err by holding that the passage of the by-laws complied with the open meeting requirement in s. 239 of the Municipal Act, 2001? (2) Did the application judge err by finding that the by-laws were not passed in bad faith? (3) Did the application judge err by holding that the by-laws did not breach either s. 2(b) or s. 15 of the Canadian Charter of Rights and Freedoms? and (4) Did the application judge err by holding that by-law 64-2008 was not rendered invalid or inapplicable to the Haudenosaunee by the federal legislative power in relation to Indians under s. 91(24) of the Constitution Act 1867?

Laskin J.A. wrote the decision on behalf of the unanimous court. With respect to the first ground of appeal, the Court held that the by-laws did not violate the open meeting requirement. Under the‎ Municipal Act, 2001, the Council was permitted to close all or parts of its meetings to the public for “advice that is subject to solicitor-client privilege including communications necessary for that purpose”. The Court found that in the face of a volatile situation that had reached near crisis proportions, Brantford needed legal advice to ensure that the steps it took to protect the community would be lawful. The Court noted that HDI could have asked for an independent investigation to determine whether the Council had complied with the open meeting requirement, but failed to do so.

Regarding the second ground of appeal, the Court found that HDI failed to rebut the presumption that municipal by-laws are enacted in good faith. The Court held that none of the so-called “badges” advanced by HDI evidenced bad faith. The Court held that the resolution to close the meeting gave fair notice of the matters to be discussed in private; the public was given meaningful notice before the meeting about the nature of the by-laws; it was immaterial that most of the meeting was held behind closed doors; and, the two by-laws did not target HDI and, accordingly, HDI was not entitled to any special notice.

As to the third ground of appeal, the Court agreed with the application judge that the by-laws did not violate s. 15 of the Charter because the by-laws did not discriminate against the Haudenosaunee in purpose or effect. The Court upheld the constitutionality of the by-laws, deciding that certain provisions in the by-laws that were considered to infringe s. 2(b) of the Charter in a manner that impaired HDI’s rights under s. 1 of the Charter could be struck out, namely: a prohibition on erecting signs on or adjacent to a designated street in by-law 63-2008; and, a prohibition on requesting or inviting a fee for development in by-law 64-2008. All other provisions in the by-laws, including prohibitions against signs on private property, interference with street access and construction-related activity, and coercive conduct, such as demanding a fee for development, were upheld.

Finally, the Court rejected the fourth ground of appeal, finding that by-law 64-2008, which was passed under Ontario’s Municipal Act, 2001 was in pith and substance about property and civil rights, which falls under the provincial legislative power. The by-law does not single out the Haudenosaunee people for special treatment, which would be invalid, but rather prohibits everyone from engaging in certain activities. Moreover, the Court held that the by-law does not touch on the “core of Indianness”, which would be protected from provincial or municipal intrusion.

The Court of Appeal’s decision is a strong endorsement of the rights of municipalities under the Municipal Act, 2001, including a municipality’s power to protect its citizens and its economic base and development from undue interference.

Neal Smitheman, W. Thomas Barlow and Tracy A. Pratt were counsel for The Corporation of the City of Brantford.

Read the Court’s decision: Detlor v. Brantford (City), 2013 ONCA 560

View our previous bulletin on the case.

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