1536412 Ontario Ltd. v. HCCC, HDI, Ruby & Floyd Montour, Hazel Hill (Cayuga occupation, May-June 2008)

Posted on April 24, 2010 by Mark Vandermaas

Caledonia Lawsuits & Court Actions>Court Decisions: Illegal Occupations and Land Claims>1536412 Ontario Ltd. v. HCCC, HDI, Ruby & Floyd Montour, Hazel Hill

Cayuga occupation, May 12/08: OPP refuses to remove illegal occupiers. Builder obtains injunction and also authorizes CANACE’s Gary McHale to gather evidence and lay charges. 9 Charges – Extortion, Intimidation, Mischief laid. Crown dropped all charges at 1st opportunity. OPP then laid 1 count Mischief vs. each vs. Floyd Montour and Ruby Montour (red hat).

1536412 Ontario Ltd. v. HCCC, HDI, Ruby & Floyd Montour, Hazel Hill (Cayuga occupation, May-June 2008)

  • Plaintiff: 1536412 ONTARIO LTD.
  • Defendant: THE HAUDENOSAUNEE CONFEDERACY CHIEFS COUNCIL, Members of THE HAUDENOSAUNEE DEVELOPMENT INSTITUTE, RUBY MONTOUR, FLOYD MONTOUR, HAZEL E. HILL or any agent or person acting under their instructions, JOHN DOE, JANE DOE and other persons unknown

DECISION: PLAINTIFF (Property Owner)

  • SUPERIOR COURT OF JUSTICE – ONTARIO, June 10/08: Injunction Endorsement [PDF]
  • Superior Court of Justice, May 22/08: Order (OPP to assist Sheriff in enforcement)
  • Superior Court of Justice, May 21/08: Injunction Order
  • Superior Court of Justice: Plaintiff’s Factum (draft)

RULINGS CITED:

  • re Haldimand Tract ownership: Ontario Court of Appeal – Isaac v. Davey (Ontario Court of Appeal, 1974).
  • re Aboriginal rights claims: Supreme Court of Canada (x3) – R. v. Sparrow (1990); R. v. Van der Peet (1996) and Delgamuukw v. British Columbia (1997).
  • re injunctions in context of aboriginal rights: Henco Industries v. Haudenosaunee Six Nations Confederacy Council (Court of Appeal, 2006); City of Brantford v. Haudenausanee Development Institute (Superior Court, 2008).

ISSUES:

    • Order to end illegal occupation by native protesters.
    • HDI (Haudenosaunne Development Institute) demanded $3,000 from owner and ongoing fees in perpetuity. [7]
    • HDI & Hazel Hill say they have not interfered and those who did not acting on their behalf. [24]
    • Ruby Montour and others blocked development on several occasions. (CANACE was present May 12/08) [8]
    • OPP refused to remove trespassers [6, 8]
    • OPP suggested owner negotiate w/trespassers. [6]
    • OPP told owners protesters would only be removed if fighting broke out, and they would also be removed. [9, 28, 29(3)]
    • Ruby Montour told owner must transfer title to natives or lose property permanently. [7,8]
  • Natives wanted money from owner, not a stop to the development. [25]
  • Six Nations did not occupy Haldimand Tract until after British sovereignty in 1794. [19, footnote 3]
  • Six Nations may have a right to an accounting re proceeds of sale, but no interest in subject property. [20]
  • Six Nations has not initiated any legal claim against subject property; not listed in Six Nations Land & Resources website. [3]
  • Nanfan Treaty (1701) has to do with hunting rights, not land ownership. [14]
  • HDI et al demand to control development; charge fees; tax land and have ownership transferred to them of property surrendered 160 yrs ago is “tantamount to a claim of sovereignty.” [22]
  • ‘Aboriginal sovereignty’ is not one of the special rights granted under Cdn. Constitution. [22]
  • Province states that it stands by land titles system. [4]
  • Province states no one should pay fees other than mandated by municipality. [4]
  • Province advises owners not to pay fees, but refuses to enforce property rights and threatens arrest if owners try to enforce them.  [28]
  • “The authorities’ refusal to defend the plaintiff’s property rights has put the plaintiff in a most unfair position.” [28]
  • Police have right to remove trespassers without injunction. [29(1)]
  • A blanket refusal to assist a property owner or a class of owners is an “abuse” of police discretion. [29(2)]
  • Police have no right to prevent owners from removing trespassers under s.41 of Criminal Code (use of reasonable force to remove trespasser) [29(3)]
  • Police were abusing their power by warning owner they would arrest them if violence broke out, regardless of circumstances. [29(3)]

EXCERPTS:

[28] The remaining defendants’ [native protesters] resort to self-help, taken with the authorities’ refusal to defend the plaintiff’s property rights, has put the plaintiff in a most unfair position. The same government that advises the plaintiff not to pay extra-governmental development fees refuses to enforce its property rights and threatens to arrest its agents if they try to enforce these rights on their own.

[29] I would be the last person to interfere with the proper exercise of discretion by the authorities. I do think that it might be helpful to clear up some misapprehensions that they appear to have.

1. The police have the right to remove unwanted persons from private property at the request of the owners with or without an injunction.

2. The police have the right to use their discretion in the enforcement of the law and private property rights. A blanket refusal to assist a property owner or a class of property owners, however, would be an abuse of that right.

3. The police have no right to prevent the plaintiffs from acting within their rights under s.41 of the Criminal Code. Their warning to the plaintiff that they would arrest anyone who is involved in a physical confrontation, regardless of the circumstances, is an abuse of the power conferred on them by s.31 of the Criminal Code.

[NOTE: s.41 of the ‘Defence of Property’ portion of the Criminal Code gives property owners the right to remove tresspassers w/reasonable force. S.42 gives owners the right to enter their property.]

BACKGROUND/NOTES:

On May 12/08 members of CANACE were asked by a developer to gather evidence for the purposes of laying criminal charges against native protesters who had blocked access to their Cayuga townhouse development because the Ontario Provincial Police refused to enforce the law by removing them.

OTHER REFERENCES

About Mark Vandermaas

I am founder of Israel Truth Week, and I'm the 'Liberate Israel Training Guy.' I train pro-Israel advocates in how to use Israel's land title deed-the Mandate For Palestine-as a powerful moral narrative to counter the false 'occupation' vilification. Also, founder of VoiceofCanada.ca and the Caledonia Victims Project.
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