Court rules against aboriginal land claim


thestar.com
Bob Aaron
Bob Aaron bob@aaron.ca

Posted On: Saturday, May 23, 2009
Injunction granted after protesters stall construction at Hagersville home-building site

Last month, the Ontario Superior Court in Hamilton granted an injunction against two aboriginal groups preventing them from entering the property of a local homebuilder and interfering with the development of its land.

In 2001, John Voortman & Associates Ltd. purchased a property on Main St. N., in Hagersville. It consists of 2.4 hectares (six acres) of raw land upon which Voortman intends to build a subdivision of 46 townhouses. Title to the property can be traced back to Crown grants in 1849 and 1850.

Last June, Chief William Contour of the Six Nations Council wrote to the senior planner in Haldimand County advising him that the Voortman property was subject to a Six Nations aboriginal land claim, and that no development should take place until its claim is settled with the provincial and federal governments.

In October, Voortman hired a contractor to clear and level the site. A group of aboriginal people came to the site to protest the work. Voortman was told that the property was aboriginal land and that the group would return daily until construction stopped.

The Ontario Provincial Police came to the site but refused to take any action to remove the protesters without a court order.

Construction was halted until Dec. 7. When it resumed, the protesters again arrived and shut down all work. One of the protesters informed the developer that he represented the Haudenosaunee Men's Fire of Grand River (HMF), an aboriginal group independent of the Six Nations Council.

With the clock ticking and contractors standing by, Voortman sued the HMF, the Haudenosaunee Confederacy Chiefs Council and several individuals, claiming an injunction restraining them from interfering with the work.

At the court hearing in March before Justice Joseph R. Henderson, the HMF claimed that the aboriginal peoples have a legal claim to the land, which was part of the original Haldimand Tract. That tract encompassed land six miles (9.6 kilometres) on either side of the Grand River and was the subject of the Haldimand Proclamation of 1784 and Simcoe's Patent of 1793.

Henderson released his ruling last month. He found that the Six Nations people did not own the land, and that "the aboriginal claim is weak and the private landowner's case is strong."

"I accept that Voortman is the registered owner of the property and therefore is entitled to exercise its rights as owner," he wrote. "I accept that the Six Nations people have an ongoing claim regarding these lands, but that claim is not for title to, or possession of, the lands; rather it is for damages."

In a clear warning to the natives who participated in the protest, the judge noted, "I also find that the actions of the HMF amount to both criminal and civil misconduct. Their actions have interfered with the property rights of Voortman and can be characterized as nuisance, trespass, extortion, intimidation and inducing breach of contract.

"The rule of law means that the HMF will be required to obey any court order, just as any person in Canada would be required to obey a court order. The assertion of an aboriginal right does not permit any person, aboriginal or otherwise, to break the law."

Henderson declared that Voortman is entitled to exclusive possession of the property and issued an injunction restraining the defendants in the case from obstructing its development.

The court order, he ruled, is to be enforced by the Sheriff of Haldimand County with the assistance of the OPP.

What I don't understand is why a private property owner, faced with trespassers whose conduct can be characterized as "nuisance, trespass, extortion, (and) intimidation," should be forced to go to the trouble and expense of court action instead of simply having the police remove them.

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John Voortman & Associates Limited v. Haudenosaunee Confederacy Chiefs Council, 2009 CanLII 14797 (ON S.C.)

Reflex Record (related decisions, legislation cited and decisions cited)

Legislation cited (available on CanLII)

Decisions cited

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Bob Aaron is a Toronto real estate lawyer and frequent speaker to groups of home buyers and real estate agents.
He can be reached by email at bob@aaron.ca, phone 416-364-9366 or fax 416-364-3818.

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