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September
12, 2003
COURT GRANTS CITY INJUNCTION – WHAT NOW?
The City has obtained the court injunction they sought to
prevent protests at the Greenhill Avenue and other expressway
construction sites. The 23-page decision was released early
this afternoon. The defendants waged a valiant battle and
the judge complimented them in his decision, but the cards
were stacked against them. It is very unusual for the courts
to refuse an injunction request. The defendants asked the
court to take an innovative stance, but the judge decided
to follow a more traditional path.
The decision does not necessarily mean that construction
will start on Monday at Greenhill. The City is still facing
the occupation of the site by members of the Haundenosaunee
(Six Nations) Confederacy. There is no mention of the Haundenosaunee
in the court decision, despite the fact that lawyers representing
both the Confederacy and the Six Nations Band Council addressed
the court on August 15.
Indeed, there is no change in the wording of the new injunction
with regards to protestors from the one that has been in
force since August 15.
The Haundenosaunee have very strong moral and legal rights
in Red Hill Valley. They have a right and a duty to protect
the burial sites of their ancestors, and they have a solemn
treaty with the Crown that guarantees them the right to
use of the valley to gather medicinal plants, food and other
natural materials. Quite obviously that right will be seriously
damaged if not destroyed by the proposed expressway project.
Jurisdiction over the treaty rights of First Nations does
not rest with provincial courts. These issues remain outstanding
and unresolved.
Despite the court decision, the last six weeks have been
beneficial to the valley and its future. The delays imposed
on the City by the courageous action of hundreds of individuals
should be sufficient to prevent the City from doing any
major destruction in the valley before the November 10 elections.
The continuing action of the Haundenosaunee will likely
guarantee this. There has also been extensive media coverage
across the province and the country, as well as the largest
ever outpouring of popular support for the valley —
in letters to the media and through many other forms.
We still have an excellent opportunity to change the face
of City Council on November 10. We can elect David Christopherson
as mayor, Brian McHattie in Ward 1, Bob Barlow in Ward 10
and other new anti-expressway councillors. The four present
anti-expressway councillors (Dave Braden, Andrea Horwath,
Margaret McCarthy and Russ Powers) are all seeking re-election
and deserve our strongest support. Interestingly, the judge
suggested that this is the appropriate option we should
seek.
In his decision, Justice Henderson noted
“the
defendants made a strong submission that the plaintiff
[City] was not a proper steward of the Valley. It was
powerfully argued that the plaintiff has behaved in a
reckless manner, and cannot be trusted to properly care
for the Valley, its ecological system, and its inhabitants.
In support of this argument, the defendants allege that
the plaintiff has misrepresented the effects that the
Project will have on air quality, has withheld relevant
reports, has not properly contained leachate discharge
from the Rennie Street Landfill site, and has been found
guilty of violations of the Fisheries Act and the Ontario
Water Resources Act, has allowed fecal contamination of
Red Hill Creek through improper or inadequate sanitary
and storm sewers, and has committed a near violation of
the Migratory Birds Convention Act, 1994. Moreover it
is alleged that the plaintiff committed to an ongoing
dialogue with the opponents of the Project, but has failed
to fulfill that commitment. This is an attractive argument
that was made eloquently and with considerable passion.
However, ultimately this argument must fail. Whether the
defendants like it or not the plaintiff in this case is
the steward for the Valley. The plaintiff is the owner
of the property and as the owner it has chosen to pursue
a certain direction for the Valley. The plaintiff is controlled
by duly elected politicians who have collectively chosen
to pursue this direction. If the defendants do not like
the stewardship of the plaintiff, they have a political
issue, not a legal issue."
If you would like a PDF copy of the court decision, please
email us at redhill@hwcn.org.
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