A pipeline, some rabbit traps, and a 300-year-old treaty

By May 4, 2017May 5th, 2017Blog

Back in March I had the great pleasure of acting for Todd and Wayne with co-counsel  Aaron Detlor on this injunction motion. Unfortunately we lost.

The Toronto Star wrote an article about the case on March 27, 2017.

Todd, Wayne and Aaron are all citizens of the Haudenosaunee Confederacy.  Don’t feel bad if you don’t know what that means. I am in my 50s and had never heard the term Haudenosaunee until I met Aaron last fall on another case.

Here is a link to some information about the Haudenosaunee.

The injunction motion was brought by Enbridge Pipelines seeking to stop Todd and Wayne from exercising their hunting rights on Enbridge construction sites around Hamilton.

Aaron is an excellent lawyer with an encyclopedic knowledge of Canadian First Nations law as well has Haudenosaunee law.  I was amazed watching him recite a Haudenosaunee thanksgiving address in Mohawk at the start and end of each Court day.

Aaron knew of a decision of the Court of Appeal from 2008 called Frontenac Ventures v. Ardoch Algonquin First Nation.

In Frontenac,  Ontario’s highest Court ruled that in cases where constitutionally protected aboriginal rights are asserted, an injunction should only be granted to a private party where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests.

This ruling added a brand new dimension to the law of injunctions for cases with an aboriginal law issue.  Or did it?

You see, I thought Todd and Wayne’s case was one where “constitutionally protected aboriginal rights [were] asserted” and that Enbridge’s injunction motion should be dismissed until the consultation, negotiation, accommodation and reconciliation process was complete.  Unfortunately, the Court did not see it that way.  The Judge reviewed a number of cases that considered the Frontenac case as well as a 2013 Supreme Court of Canada case and concluded that Frontenac  did not change the traditional injunction test.

As I was writing this, an email came in from my daughter’s high school principal.  The principal signed off her email with this message:

I would like to acknowledge that [name of high school] is situated upon traditional territories. The territories include the Wendat, the Anishinabek Nation, the Haudenosaunee Confederacy, the Mississaugas of the New Credit First Nations, and the Métis Nation.
The treaty that was signed for this particular parcel of land is collectively referred to as the Toronto Purchase and applies to lands east of Brown’s Line to Woodbine Avenue and north towards Newmarket. I also recognize the enduring presence of Aboriginal peoples on this land.

This type of acknowledgment is so so important.   Court decisions alone will not bring about change.  We need for our colonial society to learn about and acknowledge the very ugly side of Canadian history that, until recently, has been actively concealed.

O:nen ki:wahi.