Aboriginal claims have become a crucial consideration to developers and others in the construction industry seeking to manage risk effectively and deliver successful development projects. In many cases where aboriginal claims are asserted, unexpected delays, litigation, project failure, and even violent confrontations can be the result. These circumstances were at play in Brantford, Ontario, where certain First Nation individuals and a First Nation organization called the Haudenosaunee Development Institute ("HDI") demanded that developers pay fees, obtain permits from the HDI, and satisfy various other conditions in relation to numerous development sites across Brantford.1 When developers refused, blockades were erected, and delays and litigation ensued.
The HDI was created by the unelected Confederacy Chiefs of a
First Nation band proximate to Brantford called Six Nations of the
Grand River, whose members are also known as the Haudenosaunee
(often translated as "People of the Longhouse"). The
Confederacy Chiefs and the HDI believe that all lands within the
"Haldimand Tract" – lands that run six miles
deep on either side of the Grand River from its source to its mouth
and include Brantford – belong to the Haudenosaunee
people by virtue of the Haldimand Treaty of 1784. The HDI and
certain First Nation individuals believe that these lands are
independent of Canada, Ontario, and Brantford. The stated purpose
of the HDI is to deal with developers "expeditiously and
effectively" and to "regulate development" in the
The development projects at issue were of "significant economic importance" to Brantford. They included a hotel, manufacturing facility, retail outlets, and a residential subdivision. The developers had obtained all the approvals and permits required by Ontario and Brantford. When the developers refused to accede to the HDI's demands for payment of development fees and the satisfaction of various other conditions, certain First Nation individuals and unidentified protesters blockaded entry to the development sites, threatened workers, and damaged property, thereby bringing construction at the various sites to a halt.
The City of Brantford responded by passing by-laws prohibiting any interference with construction on the development sites and any unauthorized group from demanding fees or tariffs from developers as a condition of development in Brantford. The City of Brantford also obtained an interim injunction against the protesters, but the blockades and confrontations continued.
The City accordingly brought an action against certain First Nation individuals and the HDI for breach of the by-laws, civil conspiracy, and public nuisance. On application, the City also sought an interlocutory injunction against them to cease and desist from interfering with access to the development sites and from demanding the satisfaction of various conditions as a prerequisite to development in Brantford. The First Nation individuals and the HDI, in turn, sought a declaration that the by-laws were invalid.
the Court's decision on the application
In granting the interlocutory injunction, Justice Arrell found
- the City of Brantford's allegations of breach of the by-laws, civil conspiracy, and public nuisance had merit and were therefore serious issues to be tried;
- the City of Brantford would suffer irreparable harm should the injunction not be granted as Brantford's economy, reputation, and the rule of law were all threatened by the protesters' actions; and
- the balance of convenience favoured the City of Brantford over the First Nation individuals and the HDI.
In assessing this last element, the Court found that the claim
for title of the First Nation individuals and the HDI to the
subject lands in Brantford was "exceedingly weak" and
that the delay of over 150 years in asserting any claim to title
barred the return of the lands to the Haudenosaunee. Six Nations of
the Grand River agreed to surrender for sale the subject lands and
they were indeed sold as far back as the 1840s. The Court also
found that if the First Nation individuals and HDI were owed any
duty to consult, such a duty was satisfied as they had been
provided notice of the subject developments, had an opportunity to
respond to such notices, and received further consultation through
the litigation process itself. The Court therefore concluded that
the potential harm to the City of Brantford that would result from
the cessation of construction greatly outweighed any potential harm
to the First Nation individuals and the HDI.
In dismissing the claims of the First Nation individuals and the HDI that the by-laws were invalid, the Court rejected their arguments that,
- the by-laws were passed in breach of the Crown's duty to consult aboriginal peoples;
- the subject matter of the by-laws was outside the City of Brantford's jurisdiction as it respected the federal matter of "Indians and Indian land";
- the by-laws violated Charter rights of the First Nation individuals and the HDI, including freedoms of expression, assembly, and association; and
- the by-laws were enacted in bad faith as the Haudenosaunee were specifically targeted without receiving notice of their enactment.
Instead, the Court found that the Haudenosaunee were not specifically targeted as the by-laws applied equally to all people and that any duty to consult owed had been satisfied. There was no evidence that the by-laws were enacted in bad faith, nor had Charter rights been infringed. The by-laws prohibited the obstruction of public rights of way, the intimidation of workers, the creation of nuisances, trespassing, and damaging private property – they did not offend the Charter.
While the City of Brantford was ultimately successful, the case
of Brantford (City) v Montour serves as an example of the
delays, inconvenience and legal costs that developers,
municipalities, and others concerned with construction can
encounter where aboriginal claims are asserted. Perhaps equally
interesting is what Justice Arrell's decision fails to address.
The Court avoided consideration of the significant issue of whether
municipalities owe aboriginal peoples a duty to consult at all.
Instead, the issue was sidestepped when the court found that, if
any such duty to consult is owed, it was satisfied. Given that
municipalities are creatures of provincial statute, the question
remains whether the duty to consult will be found to apply to
projects sanctioned, approved or commissioned by municipalities. In
avoiding the overall consultation question, the Court also avoided
discussion of whether consultation obligations are owed to First
Nation individuals or to the HDI – neither of which
constitute an aboriginal band. Regardless of whether and how these
legal issues are resolved, the case serves as a reminder that, even
when an aboriginal claim to land involved in a project is
"exceedingly weak," developers need to bear in mind the
challenges that such claims may pose to the cost and timing of
construction projects and manage risk accordingly.
1. Brantford (City) v Montour, 2010 ONSC 6253.
The foregoing provides only an overview. Readers are cautioned against making any decisions based on this material alone. Rather, a qualified lawyer should be consulted.
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