CITATION: 9646035 Canada Limited et al. v. Kristine Jill Hill et al., 2017 ONSC 5453

COURT FILE NO.: CV-17-175

DATE: 2017/09/22

SUPERIOR COURT OF JUSTICE - ONTARIO

9646035 Canada Limited and Six Nations Elected Council On Its Own Behalf and on Behalf of the Six Nations of the Grand River,

Plaintiffs

• and -

Kristine Jill Hill a.k.a. Kristine Jill Green, Brian Poreba, Kevin Banks, John Doe, and other Persons Unknown

Defendants

BEFORE: The Honourable Mr. R.J. Harper

COUNSEL: Ben A. Jetten, John Mather, Counsel for the Plaintiffs

David Shiller, Scott C. Hutchison, Counsel for the Defendants

HEARD: August 17, 18, and 22, 2017

ENDORSEMENT

I. ISSUES

[1] The Plaintiffs frame the issues as follows:

In the main action, the Plaintiffs claim, among other things, trespass and nuisance on the part of the Defendants. The Plaintiffs have legal title to the lands known as “the Burtch Property”. The Defendants are occupying those lands without lawful justification and preventing the Plaintiffs from the use and enjoyment of the Burtch Property.

The interlocutory injunctive relief they seek is the following:

An Order requiring the Defendants to vacate the “Burtch Property”; remove all farming equipment and require them to cease all farming and related activity being conducted by them on this property.

[2] The Defendants frame the issue as follows:

The Injunctive relief sought by the Plaintiffs should be dismissed. This is based on the following grounds:

• The Defendant Kristine Jill Hill (K Hill) has legal justification to remain on the Burtch Property as she has a lease to those lands issued by the Haudenosaunee Development Institute (HDI) on behalf of the Haudenosaunee Confederacy Chiefs Council (HCCC).

• The Defendant K Hill has legal justification to remain on and farm the Burtch Property as part of her constitutionally protected rights given to her by section 35(1) of the Constitution Act.

• The Plaintiffs, the Six Nations Elected Council (SNEC), cannot own land off the Reserve.

• If the SNEC is allowed to own lands off the reserve, they cannot exclude Band members from those lands without consultation and due process. The procedure in which the SNEC decided to evict the Defendant was improper.

II. BACKGROUND

[3] In 2006, the dispute that became widely known as the “Douglas Creek Estates Protests” led to open conflict and included a blockade of one of the highway accesses to the City of Caledonia. The disputants included the Six Nations of the Grand River Elected Council (SNEC) and the Haudenosaunee Confederacy Chiefs Council of the Six Nations (HCCC).

[4] Former Premier of Ontario, David Peterson, was appointed by the Ontario Government as a mediator/negotiator in an effort to settle the dispute. The negotiations, on behalf of the Six Nations people, were led by the HCCC. The negotiations led to what has been characterised in these proceedings as “The Peterson Promise”.

[5] That “Promise” specifically referred to the parcel of land known as the “Burtch Road property.” The Burtch Road property consists of approximately 380 acres. David Peterson wrote to the HCCC on May 17, 2006. That document reads as follows:

Subject: “Burtch Lands” letter dated 10th May, 2006

As acknowledged by the Honourable David Peterson,

Ontario is prepared to return title to the Burtch Road property to the Six Nations People. The land is to be available on an interim basis for the Six Nations people for immediate use while the land rights negotiations continue.

It is imperative that there be an immediate and full environmental review of the land carried by the Province of Ontario.

The title to the “Burtch Road property” will be in the land rights process of the Haudenosaunee/Six Nations/Canada/Ontario main table. It is the intention that the land title be returned to its original state, its status under the Haldimand Proclamation of 1784.

[6] The “main table” negotiations started after May 17, 2006. As set out in the David Peterson letter of May 17, 2006, the “main table” was to consist of:

a. The Haudenosaunee Confederacy Chief’s Counsel (HCCC);

b. The Six Nations Elected Council (SNEC);

c. The Ontario Government; and

d. The Federal Government.

A. The Overarching Conflict within the Six Nations of the Grand River

[7] In order to understand fully the disputed issues in this motion, it is important to review some of the material facts presented in the evidence that relate to the internal conflict within the Six Nations that envelops the specific dispute before this court.

[8] The Defendant, K Hill, describes herself as a Six Nations person who has chosen to be governed by the HCCC (a.k.a. the Hereditary Chiefs Council). She states that the Hereditary Chiefs Council is both the hereditary and traditional governing body of the Six Nations people. According to K Hill, the HCCC takes the position that the SNEC was improperly imposed on the Haudenosaunee by the Indian Act of 1924. They consider that Act and its imposition as a “coup d’état”.

[9] K Hill has brought a counter claim within this action to have the Indian Act declared unconstitutional. At the time of the hearing of this motion, the Attorney General for the Province of Ontario and the Federal Government had only recently been served with the Constitutional question. That issue will properly be dealt with at trial.

[10] K Hill asserted, in her cross examinations on the affidavits filed in this motion, that the Haudenosaunee were not created by nor are they governed by Canadian Law.

[11] Nevertheless, the HCCC agreed to be a part of the “main table”, referred to in the “Peterson Promise”.

[12] The Peterson Promise set out certain important objectives:

a. To return the Burtch Road property to the Six Nations people;

b. To have those lands immediately available for the use of the Six Nations people;

c. To have the Province of Ontario remediate the contamination of the lands in order for the use of the lands to be effected;

d. To set up a main table negotiation process in order to determine how title to the Burtch Road property was to be taken.

[13] Negotiations within the main table started in 2006. At some point in 2014, the HCCC no longer participated in the negotiation process.

[14] The Province of Ontario remediated the Burtch Road property by 2014.

[15] By the time the land became available for use in 2014, the negotiation process had not yielded any agreement on who should use the land pending title transfer. It also failed to yield any agreement on whom title of the land should be transferred to.

[16] The HCCC took the position that they had traditional rights to the “Burtch Road property” that were given to them in the Haldimand Proclamation of 1784. They also took the position that the Peterson Promise was intended to restore the Burtch Road property to the status that existed at the time of the Haldimand Proclamation. K Hill asserted, in her cross examination, that the only traditional government that existed at the time of the Haldimand Proclamation in 1784 for the Six Nations people was the HCCC. The Plaintiffs dispute that version of history. The Plaintiffs’ position as set out in the evidence before me will be discussed later.

[17] The Haldimand Proclamation reads:

Whereas His Majesty having been pleased to direct that in consideration of the early attachment to his cause manifested by the Mohawk Indians, and of the loss of their settlement which they thereby sustained -- that a convenient tract of land under his protection should be chosen as a safe and comfortable retreat for them and others of the Six Nations, who have either lost their settlements within the Territory of the American States, or wish to retire from them to the British -- I have at the earnest desire of many of these His Majesty's faithful Allies purchased a tract of land from the Indians situated between the Lakes Ontario, Erie and Huron and I do hereby in His Majesty's name authorize and permit the said Mohawk Nation and such others of the Six Nation Indians as wish to settle in that quarter to take possession of and settle upon the Banks of the River commonly called Ours [Ouse] or Grand River, running into Lake Erie, allotting to them for that purpose six miles deep from each side of the river beginning at Lake Erie and extending in that proportion to the head of the said river, which them and their posterity are to enjoy forever.

[18] The Haldimand Proclamation did not transfer title to these lands in fee simple. It “authorized and permitted the “Mohawk Nation” and such others of the “Six Nation Indians” as wish to settle in that quarter to take possession of and settle upon the Banks of the River commonly called Ours [Ouse] of Grand River…which them and their posterity are to enjoy forever”. This was confirmed in Isaac v. Davey, (1974) 1974 CanLII 40 (ON CA), 5 O.R. (2d) 610 at para. 14 where the Court of Appeal held that neither the Haldimand Proclamation nor the Simcoe Patent vested title to the Six Nations people.

[19] The Ontario Government had title to the Burtch Road property. That title was registered in the land registry pursuant to the Land Registry Act of Ontario. Those lands had been used for many years as a correctional facility. There was no evidence before me that the lands were used by the Six Nations people, whether it be Haudenosaunee Confederacy or Six Nations as represented by the Six Nations Elected Council, in any traditional manner prior to 2014.

B. The Disputed Farming of Burtch Lands Pending Title Transfer

[20] Pending the transfer of the title to the Burtch Road property, the SNEC supported the Six Nations Farmers Association’s (SNFA) farming of the Burtch Road property. In a letter from the Six Nations Chief Ava Hill to Leroy Hill, Secretary for the Haudenosaunee Confederacy Council, dated March 21, 2014, Chief Ava Hill stated:

As you are aware, the Six Nations Farmers Association has been farming soy beans on the Burtch Property which they profit share with the community. They also harvest white corn and provide it free of charge to interested community members.

The Six Nations Elected Council supports the Farmers Association in this endeavor as they are providing a service for the good of the community.

Therefore, we were surprised to hear that the HDI (Haudenosaunee Development Institute) has informed the Farmers Association that they will be removing the access points to the Burtch property, preventing the farmers from entering the property. The Six Nations Elected Council will support the Farmers Association should the HDI attempt to remove the access points.

[21] The Province of Ontario, through the Minister of Aboriginal Affairs’ Director of Community Initiatives, wrote to Chief Ava Hill on April 1, 2015. He informed Chief Hill that the province had completed the remediation work for the Burtch Road property. He stated in this letter:

The province is now ready to transfer title to the Burtch land to the Six Nations people. As you will recall, we have had many discussions with the HCCC and the SNEC over a number of years about the entity that will hold title to Burtch, as well as the tenure of the land. We are hopeful that the Six Nations community would reach a consensus on these issues. Unfortunately, this has not happened yet.

In order to fulfil our promise and to transfer the land as quickly as possible, we are proposing to transfer the title to Burch to a community based corporation on behalf of the Six Nations people. The land would be held in trust by the corporation for the Six Nations people. We are asking the Six Nations Elected Council to create a corporation for this purpose. We encourage the SNEC to reach out to the HCCC and others in the Six Nations community to try to ensure that the corporation is representative of the various groups and interests in the Six Nations community. We also ask the SNEC to continue the dialogue with the Six Nations community about the future of the Burtch land and the long-term tenure of the land.

…In 2014 the province indicated to both the HCCC and the SNEC that there would be a moratorium on farming the Burtch land. This year, now that the remediation program is completed and the land is remediated to an agricultural standard, we want the Six Nations people to benefit from its use. Therefore, pending transfer of the title to Burtch, for the 2015/2016 growing season, we are proposing to allow the Six Nations Farmers Association (SNFA) to farm the land. As you know, the SNFA are well-established and respected in the Six Nations community and they have a proven track record as responsible stewards of the land. In the past, the SNFA has donated part of its proceeds from farming Burtch to the Six Nations community. Please let us know your views on this proposal by April 17, 2015.

[22] The contents of the above letter from Mr. Reid were shared with the Six Nations community via a “Chief’s Update Burtch Lands” (April 2015) and posted on YouTube.

C. The HCCC’s Opposing Position Articulated June 27, 2014

[23] In a letter from the HCCC to the SNEC dated June 27, 2014, the letter partly stated:

(a) The Burtch Road property was in the process of being remediated and returned to the Confederacy and had been placed in the Confederacy’s land registry;

(b) The Burtch Road property was part of an agreement between the HCCC and the Crown that would see several parcels of land returned to the Confederacy under the same status held in 1794 under the Haldimand Proclamation.

(c) The HCCC had directed the HDI to lease the lands for farming and to undertake a study to ensure they were suitable for farming; and

(d) Because the SNFA was refusing to pay rent, the lands were leased to another farming family.

[24] The HCCC purportedly leased the Burtch Road property to K Hill and her former husband Ed Green. The lease is dated April 17, 2014. It purported to set a term of five years at a rent of $30,000 per year. The term was set to end on the 17th day of April 2019. The lessees were Ed and Kris Green.

[25] The above noted lease was not terminated; however, a second lease was entered into on July 4, 2016. This lease was between the HCCC and Kris Hill. The lease granted the same rights for a term of five years from July 4, 2016 to April 4, 2021. This purported lease was signed by Kris Hill as Lessee.

[26] From the spring of 2014, this land dispute escalated. On behalf of the province, Mr. Reid sent a letter to Mr. Green and stated in part:

We would like to give the community committee an opportunity to take the lead on trying to resolve the Burtch issues, including the issue of farming and the future use of the land. Again, we request that you stop farming activities immediately and participate in the community committee process.

[27] That letter was responded to by Mr. Robert Aaron Detlor. He stated, in part, that the HCCC has registered the Burtch Road property in their registry system and have leased the use of the lands to Ed and Kris Green consistent with the promise and assurances provided by the Province of Ontario. He went on to state:

Given that the HCCC have decided to lease the harvesting interests in the land to Ed and Kris Green I would respectfully suggest that the Province of Ontario has no grounds or basis to interfere with the HCCC decision making process. Certainly Ed and Kris Green are entitled to exercise their treaty rights (free and undisturbed harvesting) in this area where they have the support and consent of the treaty holder.

[28] There is no indication that Mr. Detlor had any authority to make representations on behalf of either K Hill (Green) or Ed Hill or the HCCC. Regardless of his right to represent any of the parties to this action or the HCCC, Mr. Detlor’s comments in the letter capture a substantial portion of the framing of the dispute in this matter. I also find that there was no evidence before me that the HCCC or the HDI had legal authority to issue the leases to Ed and Kristine Green and later to the Defendant Kristine Jill Hill.

[29] The letter from the Ministry indicated that as there was no agreement between the Six Nations Community as to who should farm the land pending title transfer, “no one should farm the land.” This was ignored by K Hill (Green) and Ed Green. Farming operations were conducted by them on this land in 2015 and 2016 to varying degrees.

[30] On March 31, 2017, the title to the Burtch Road property was transferred to 9646035 Canada Limited (964 Limited) by the Province of Ontario.

[31] That Corporation would hold title as a bare trustee for the Six Nations people as represented by the SNEC. A Nominee/Trust Agreement was entered into with 964 Limited and the SNEC. According to that agreement, the company could do nothing with the Burtch Road property without prior approval of the SNEC.

[32] The SNEC planned to consult with the community about its proposal to let the Farmers Association of the Six Nations farm the land.

[33] The title to the Burtch Road property was transferred to the company known as 964 Limited on March 31, 2017. I make the following findings of events that occurred subsequent to the transfer of title:

a. On April 4, 2017, 964 Limited had locks placed on the main entrance gate to the Burtch Road property;

b. In or about mid-May 2017, someone cut off the locks that had been placed on the main entrance and replaced them with their own locks. K Hill admitted in her cross examination that she or someone on her behalf cut those locks and had them replaced with other locks.

c. On May 18, 2017, a Notice to Vacate the Burtch Road property was hand-delivered to K Hill by Dayle Bomberry, who is the President of 964 Limited.

d. At the time of delivering the Notice to Vacate, Mr. Bomberry observed that K Hill was operating a tractor on the Burtch Road property.

e. K Hill refused to vacate the property or remove any of her equipment. She refused to stop any farming activity.

f. A letter was sent to Mr. Dayle Bomberry by Mr. Shiller, identifying himself as counsel for K Hill. That letter stated that his client received the notice to vacate and that she intended to remain on the Burtch Road property. He also advised that his client had an “agricultural lease with the HCCC”. He went on to advise in that letter that the lease was registered in the “Haudenosaunee land registry system two years ago under Haudenosaunee law”.

g. Counsel for the Plaintiffs wrote to Mr. Shiller on May 24, 2017 and asked him to produce the “purported lease”. He also sought particulars of the “Haudenosaunee land registry”, including when it was created and by whom, who maintained it and where it was located in order for any inspection.

h. By the time this motion for an interlocutory injunction came before me over one month later on June 28, 2017, Mr. Shiller had not produced any of the documents requested by counsel for the Plaintiffs.

i. This motion for injunctive relief was served on the Defendants on June 15, 2017.

j. I granted an interim injunction that provided, among other things, that the Defendant Kristine Jill Hill and others were to:

i. Vacate the Burtch Road property;

ii. Stop farming on the lands;

iii. Remove all equipment; and

iv. Stop preventing access to the lands.

[34] I found K Hill in contempt of my order of June 28, 2017. That decision was given orally and a written decision has been released.

III. LAW AND ANALYSIS

A. Duty to Consult for Interlocutory Injunction Applications Engaging Aboriginal Rights

[35] The Defence argued that for interlocutory injunction applications engaging aboriginal treaty rights, the court must consider a threshold question of whether there has been consultation. It was submitted that consultation is a means of considering the balancing of interests at the granting stage of an injunction, which was required by MacPherson J.A. in Frontenac Ventures Corp. v. Ardoch Algonquin First Nation, 2008 ONCA 534. Frontenac states the following at para. 43:

In my view, the stage at which the comprehensive and nuanced description of the rule of law expressed in Henco must be considered is when a court is requested by a private party to grant an injunction and where doing so might have an adverse impact on asserted aboriginal and treaty rights affirmed in s. 35 of the Constitution Act, 1982. Such cases demand a careful and sensitive balancing of many important interests in assessing whether to grant the requested injunction and on what terms.

i. Duty to Consult

[36] Justice Cromwell observed in Behn v. Moulton Contracting Ltd., 2013 SCC 26, 2013 CarswellBC 1158 at para. 29:

[29] The duty to consult is triggered “when the Crown has knowledge, real or constructive, of the potential existence of the Aboriginal right or title and contemplates conduct that might adversely affect it”: Haida Nation, at para. 35. The content of the duty varies depending on the context, as it lies on a spectrum of different actions to be taken by the Crown: Haida Nation, at para. 43. An important component of the duty to consult is a requirement that good faith be shown by both the Crown and the Aboriginal people in question: Haida Nation, at para. 42. Both parties must take a reasonable and fair approach in their dealings. The duty does not require that an agreement be reached, nor does it give Aboriginal peoples a veto: Taku River Tlingit First Nation v. British Columbia (Project Assessment Director), 2004 SCC 74, [2004] 3 S.C.R. 550, at paras. 2 and 22; Haida Nation, at para. 48.

[30] The duty to consult exists to protect the collective rights of Aboriginal peoples. For this reason, it is owed to the Aboriginal group that holds the s. 35 rights, which are collective in nature: Beckman, at para. 35; Woodward, at p. 5-55. But an Aboriginal group can authorize an individual or an organization to represent it for the purpose of asserting its s. 35 rights: see, e.g., Komoyue Heritage Society v. British Columbia (Attorney General), 2006 BCSC 1517, 55 Admin. L.R. (4th) 236.

[37] In Haida Nation v. British Columbia (Minister of Forests), [2004] 3 S.C.R. 511, 2004 SCC 73, the Supreme Court stated commencing at para. 39:

D. The Scope and Content of the Duty to Consult and Accommodate

[39] The content of the duty to consult and accommodate varies with the circumstances. Precisely what duties arise in different situations will be defined as the case law in this emerging area develops. In general terms, however, it may be asserted that the scope of the duty is proportionate to a preliminary assessment of the strength of the case supporting the existence of the right or title, and to the seriousness of the potentially adverse effect upon the right or title claimed.

[40] In Delgamuukw, supra, at para. 168, the Court considered the duty to consult and accommodate in the context of established claims. Lamer C.J. wrote:

The nature and scope of the duty of consultation will vary with the circumstances. In occasional cases, when the breach is less serious or relatively minor, it will be no more than a duty to discuss important decisions that will be taken with respect to lands held pursuant to aboriginal title. Of course, even in these rare cases when the minimum acceptable standard is consultation, this consultation must be in good faith, and with the intention of substantially addressing the concerns of the aboriginal peoples whose lands are at issue. In most cases, it will be significantly deeper than mere consultation. Some cases may even require the full consent of an aboriginal nation, particularly when provinces enact hunting and fishing regulations in relation to aboriginal lands.

[41] Transposing this passage to pre-proof claims, one may venture the following. While it is not useful to classify situations into watertight compartments, different situations requiring different responses can be identified. In all cases, the honour of the Crown requires that the Crown act with good faith to provide meaningful consultation appropriate to the circumstances. In discharging this duty, regard may be had to the procedural safeguards of natural justice mandated by administrative law.

[42] At all stages, good faith on both sides is required. The common thread on the Crown’s part must be “the intention of substantially addressing [Aboriginal] concerns” as they are raised (Delgamuukw, supra, at para. 168), through a meaningful process of consultation. Sharp dealing is not permitted. However, there is no duty to agree; rather, the commitment is to a meaningful process of consultation. As for Aboriginal claimants, they must not frustrate the Crown’s reasonable good faith attempts, nor should they take unreasonable positions to thwart government from making decisions or acting in cases where, despite meaningful consultation, agreement is not reached: see Halfway River First Nation v. British Columbia (Ministry of Forests), 1999 BCCA 470, [1999] 4 C.N.L.R. 1 (B.C.C.A.), at p. 44; Heiltsuk Tribal Council v. British Columbia (Minister of Sustainable Resource Management) (2003), 2003 BCSC 1422, 19 B.C.L.R. (4th) 107 (B.C.S.C.). Mere hard bargaining, however, will not offend an Aboriginal people’s right to be consulted.

[38] The Court went on at para. 45:

[45] Between these two extremes of the spectrum just described, will lie other situations. Every case must be approached individually. Each must also be approached flexibly, since the level of consultation required may change as the process goes on and new information comes to light. The controlling question in all situations is what is required to maintain the honour of the Crown and to effect reconciliation between the Crown and the Aboriginal peoples with respect to the interests at stake. Pending settlement, the Crown is bound by its honour to balance societal and Aboriginal interests in making decisions that may affect Aboriginal claims. The Crown may be required to make decisions in the face of disagreement as to the adequacy of its response to Aboriginal concerns. Balance and compromise will then be necessary.

[46] Meaningful consultation may oblige the Crown to make changes to its proposed action based on information obtained through consultations. The New Zealand Ministry of Justice’s Guide for Consultation with Mäori (1997) provides insight (at pp. 21 and 31):

Consultation is not just a process of exchanging information. It also entails testing and being prepared to amend policy proposals in the light of information received, and providing feedback. Consultation therefore becomes a process which should ensure both parties are better informed…

… genuine consultation means a process that involves…:

• gathering information to test policy proposals

• putting forward proposals that are not yet finalised

• seeking Mäori opinion on those proposals

• informing Mäori of all relevant information upon which those proposals are based

• not promoting but listening with an open mind to what Mäori have to say

• being prepared to alter the original proposal

• providing feedback both during the consultation process and after the decision-process.

[47] When the consultation process suggests amendment of Crown policy, we arrive at the stage of accommodation. Thus the effect of good faith consultation may be to reveal a duty to accommodate. Where a strong prima facie case exists for the claim, and the consequences of the government’s proposed decision may adversely affect it in a significant way, addressing the Aboriginal concerns may require taking steps to avoid irreparable harm or to minimize the effects of infringement, pending final resolution of the underlying claim. Accommodation is achieved through consultation, as this Court recognized in R. v. Marshall, 1999 CanLII 666 (SCC), [1999] 3 S.C.R. 533, at para. 22: “. . . the process of accommodation of the treaty right may best be resolved by consultation and negotiation”.

[48] This process does not give Aboriginal groups a veto over what can be done with land pending final proof of the claim. The Aboriginal “consent” spoken of in Delgamuukw is appropriate only in cases of established rights, and then by no means in every case. Rather, what is required is a process of balancing interests, of give and take.

ii. Consultation and Negotiation in this Case

[39] In the case before me, the evidence is lacking with respect to any details of the nature of the consultation and negotiation process within the main table discussions. I am not able to conduct any analysis, at this stage, of whether or not the main table discussions met the concepts set out by Justice Cromwell in Haida. I do find that a good faith process was set in motion and it yielded results. I am reminded of the comment of Justice Laskin in Henco Industries Limited v. Haudenosaunee Six Nations Confederacy Council, (2006) 2006 CanLII 41649 (ON CA), 82 OR (3d) 721; 277 DLR (4th) 274, the Court of Appeal case dealing with the 2006 Douglas Creek Estates protest at para. 138:

[138] Although the motions judge’s reasons had the effect of interrupting the negotiations that had begun in May and according to the parties had already achieved some success, we were told that negotiations resumed after the stay hearing when we made it clear that the August 8 order did not preclude negotiations. Addressing the disputed issues by negotiations has obvious advantages as long as all parties work reasonably and constructively towards a settlement. (Emphasis added.)

[40] The parties agreed and that process was entered into separately and distinct from the litigation stream. Regional Senior Justice Harrison Arrell agreed to conduct the mid-hearing conferences and the parties consented to his involvement. It was my view that by proceeding in such a manner, the parties had every opportunity to explore the other dimensions of the highly-textured considerations of the rule of law.

[41] As the Supreme Court of Canada stated in Haida, the duty of the Crown to enter into this consultation process is to an aboriginal group and not to an individual. Section 35 rights are collective in nature.

[42] K Hill is claiming, in part, that she has property rights that flow from the HCCC. It is the HCCC that was part of the main table process from at least 2006 through to 2014. The end result of that consultative process was a decision to transfer title of the Burtch Road property to the Six Nations through a corporate vehicle in trust for the Six Nations of the Grand River as represented by the SNEC. The HCCC does not hold a veto power to such a decision. On the evidentiary record before me, I find that the Crown met its obligations to consult through the years of main table discussions with respect to the Burtch Road property.

[43] At the outset of the interlocutory proceedings for the injunction, I urged the parties to enter into a parallel process of negotiation. It could be one in which a mid-hearing conference be set up in order to see if there could be solution options at the same time as they continue to advance their legal claims.

B. Interlocutory Injunctions and Trespass

[44] The test for whether an interlocutory injunction should be granted was set out in American Cyanamid Co. v. Ethicon Ltd., 1975 CanLII 2598 (FC), [1975] A.C. 396 (H.L.) and adopted by the Supreme Court in Manitoba (Attorney General) v. Metropolitan Stores Ltd., 1987 CanLII 79 (SCC), [1987] 1 S.C.R. 110, 46 Man. R. (2d) 241; and RJR-MacDonald Inc. v. Canada (Attorney General), 1994 CanLII 117 (SCC), [1994] 1 S.C.R. 311, 111 D.L.R. (4th) 385 where, at page 334, Sopinka and Cory JJ. summarized the test as follows:

First, a preliminary assessment must be made of the merits of the case to ensure that there is a serious question to be tried. Secondly, it must be determined whether the applicant would suffer irreparable harm if the application were refused. Finally, an assessment must be made as to which of the parties would suffer greater harm from the granting or refusal of the remedy pending a decision on the merits.

[45] Associate Chief Justice Cunningham, as he then was, reviewed the law as it relates to injunctions and trespass in Frontenac Ventures Corp. V. Ardoch Algonquin First Nations, 2008 ONCA 534, 295 D.L.R. (4th) 108. He stated the following at para. 12:

[12] Turning to irreparable harm, the second stage of the test for an interlocutory injunction, this is harm that cannot be quantified or remedied by an award of damages. The interference with property rights such as the current blockade and associated trespass in my view, by its very nature, gives rise to irreparable harm. As Sharpe J. stated in his text, Injunctions and Specific Performance (Aurora: Canada Law Book, looseleaf at 4.10 and 5.590), “Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.” This is particularly so where the trespass is deliberate and continuing as it is in the current situation. Sharpe JA has cautioned that an award of damages would in effect amount to expropriation without legislative sanction. In the present case, I conclude FVC will suffer irreparable harm if injunctive relief is denied.

[46] With respect to interference with property rights, Justice Robert J. Sharpe stated in the aforementioned text:

Under our system of law, property rights are sacrosanct. For that reason, the rules that generally apply to injunctions do not always apply in cases such as this. The balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.

Where the plaintiff complains of an interference with property rights, injunctive relief is strongly favoured. This is especially so in the case of direct infringement in the nature of trespass.... Where property rights are concerned, it is almost that damages are presumed inadequate and an injunction to restrain continuation of the wrong is the usual remedy.

[47] The Defence argued that Justice Sharpe’s comments related to final determinations as opposed to interlocutory motions for injunctions. I do not agree with that submission. Many of the cases that were cited by Justice Sharpe and multiple cases dealing with this issue are cases that dealt with interlocutory motions for injunctions.

C. Serious Issue to Be Tried

[48] The issue to be tried is property rights. The Plaintiffs assert that they have legal title to the Burtch Road property and that the evidence establishes trespass and nuisance by the Defendant.

[49] In defence, Ms. Hill makes the following arguments:

• Ms. Hill was granted a valid leasehold interest from the HDI / HCCC in the Burtch Road property.

• Ms. Hill has s. 35 Constitution Act rights which allow her to remain and farm on the land.

• The SNEC acted improperly when deciding to evict her.

• The SNEC cannot legally hold property outside of the reserve.

I will respond to each of the parties’ submissions in turn.

i. Trespass and Nuisance

[50] The elements of the tort of trespass to land are well established and were summarized in the case of Calandra v. Parasco, 1998 CarswellOnt 4406 (Ont. Ct. Gen. Div.) at para. 13 as follows:

The tort of trespass to land is committed by entry upon, remaining upon or placing or projecting any object upon land in the possession of the plaintiff without lawful justification. To be actionable, the defendant’s act must be voluntary, but it need not be intentional. Trespass may be committed either intentionally or negligently. The interference with the plaintiff’s property must be direct, not indirect or consequential. (Emphasis added.)

ii. Analysis of the Property Rights Asserted

[51] The Plaintiffs claim that the Defendant, K Hill, and others are trespassing on the Burtch Road property. They assert that they have title to the lands and that they properly served a Notice to Vacate on K Hill.

[52] K Hill claims that she has a valid lease to farm on the Burtch Road property. She asserts that she was given such a lease by the HDI on behalf of the rightful owners to the Burtch Road property, the HCCC.

[53] In the case before me, I find that the Plaintiff 964 Limited has title to the Burtch Road property by deed properly registered in the Land Registry Office of Ontario on March 31, 2017. 964 Limited is a bare trustee holding the lands in trust for the Six Nations of the Grand River as represented by the Six Nations Elected Council.

[54] The evidence is not disputed that K Hill received a Notice to Vacate the Burtch Road property on May 18, 2017. It is also not disputed that K Hill, through her counsel, Mr. Shiller, advised that despite the Notice to Vacate she would remain on the Burtch Road property and she would continue to farm on that property.

[55] In the case before me, the SNEC is the governing Band pursuant to the Indian Act. The SNEC is duly elected to represent the Band. I do not accept the Defendants’ argument that extremely low election turnout rates should allow me to draw an inference that many members of the Six Nations Community do not accept the SNEC as their governing authority.

[56] I will not get into the politics surrounding the dispute between those who choose to be led by the HCCC and those who decide to be led by the SNEC. Any member of the Six Nations Band who is registered and over 18 years of age can choose to vote or not to vote in the election. If the results of the election are not legally overturned, those elected have a duty and a right to pursue governance directions they choose for the benefit of the community who elected them so long as it is in accordance with the law.

[57] In no way are my comments to be taken as equating the HCCC to the group of people Justice Henderson was referring to as an “ad hoc, self-appointed, albeit well-meaning group of individuals” in Hamilton (City) v. Loucks, (2003) 2003 CanLII 64221 (ON SC), 232 D.L.R. (4th) 362 at para. 48. I recognise that there is a long and traditional history that entrenches the Haudenosaunee Hereditary Chiefs within a social and a governing role of the Six Nations people. However, as I refer to below, the evidence with respect to the history and its impact on any rights in this case is not sufficiently developed at this stage of the proceedings for me to make a determination relative to traditional rights that may impact on the property rights of the Plaintiffs.

[58] At the interlocutory stage, the court is often faced with limited evidence that will not allow for a determination of some of the material issues. I am faced with such limited evidence in this interlocutory motion. The Defendant, Kristine Hill, is asserting a right to possess and farm the Burtch Road property as a result of:

a. A leasehold interest granted to her by the Haudenosaunee Development Institute;

b. A section 35(1) Constitution Act claim to possess and settle upon the Burtch Road property that was given to her as a member of the Six Nations through the Haldimand Proclamation of 1784.

iii. The Ability of the HDI / HCCC to Grant a Leasehold Interest in the Burtch Road Property

[59] There is no evidence before me that allows me to conclude that the HDI was given any legal authority by the HCCC to grant a lease of the Burtch Road property. Mr. Shiller’s letter to Mr. Dayle Bomberry dated May 19, 2017 suggested that there was an agricultural lease between Kristine Hill and the HCCC. That letter further represented that this lease was registered in the Haudenosaunee registry system. That system was yet to be created. The evidence later disclosed that no such registry exists. The leases show that they are with the Haudenosaunee Development Institute on behalf of the HCCC.

[60] In Detlor v. Brantford (City), 2013 ONCA 560, Justice Laskin made the following observation commencing at paras. 10-11:

[10] The customary, unelected governing body of the Haudenosaunee is the Haudenosaunee Confederacy Chiefs’ Council. The Chiefs’ Council created HDI in September 2007. The applicant Montour and the appellants Hill and Detlor are principals of HDI. HDI’s terms of reference stipulate that: “the HDI will identify, register and regulate development” within the Haldimand Tract. According to HDI policy, the land in and around Brantford falls within a “red zone” – a zone where there is to be “zero to minimal development”.

[11] HDI is not a lawful government authority. It has no statutory power to compel developers to accede to its demands.

[61] In order for me to make a determination as to whether or not the HDI or the HCCC had some sort of right to grant a lease, it would be necessary to have sufficient evidence before me as to the Aboriginal history that Kristine Jill Hill seems to rely on. She submits that the Haldimand Proclamation gave certain rights to the Haudenosaunee people. It appears that part of her argument is that as the HCCC has rights to the Burtch Road property through the Haldimand Proclamation, they in turn had the right to grant a lease to her.

iv. The Historical Evidence

[62] None of the parties filed any expert evidence on this motion dealing with the Aboriginal historical context in order to assist me in making a determination of what rights if any exist that are protected by section 35(1) of the Constitution Act. The evidence before me is that the Six Nations of the Grand River Band and Elected Council was created by the Indian Act of 1924. Some members of the Six Nations choose to be governed by the Haudenosaunee Hereditary Chiefs and not the SNEC.

[63] K Hill filed as an exhibit to her affidavit of July 9, 2017 a copy of a dissertation by Andrea Lucille Catapano that was presented to the Graduate School of Stony Brook University in December 2007. This dissertation was: “In partial Fulfillment of the Requirements for the Degree of Doctor of Philosophy in History.” There is no evidence as to whether this was published in any recognized journals of other authoritative publications. There is no curriculum vitae of Ms. Catapano filed. None of the Rules of Civil Procedure were followed in order to have this evidence considered as expert evidence. I can only consider this as evidence as to why K Hill believed this version of the history. However, K Hill stated in her cross examination that she only read portions of Ms. Catapano’s dissertation. She also stated that she was not aware of how Ms. Catapano’s thesis is perceived by other academics in the historical field dealing with the Haudenosaunee. I do not give this evidence any weight.

[64] The Plaintiffs also filed what is described as an “Extract from Daniel Richter, Ordeals of the Longhouse: the Five Nations in Early American History”. There was no curriculum vitae filed and none of the Civil Procedure Rules were complied with in order to consider this as expert testimony. The only difference is that this document was published in the Syracuse University Press in 1987. Once again, I give this evidence no weight.

[65] K Hill gave evidence that the majority of the Six Nations people accept the governance of the Haudenosaunee Confederacy Chiefs. She stated that she believes that largely based on what she knows from traditional teaching and her own observations. This formed part of her argument that the return of the Burtch Road property was intended to be returned to the Haudenosaunee Hereditary Chiefs.

[66] Her evidence was a recitation of stories that were related to her in the traditional manner of story-telling by her parents and grandparents. She does not go into any details in her evidence with respect to the history that she relies on. The only detail she relates is in her cross examination of July 26, 2017. She stated that it was her understanding that less than 10 per cent of the Haudenosaunee people recognize the Band Council as their government. She admits that is her belief. When asked how she came to that belief, she stated, commencing at p. 29 question 159 of her cross examination:

A. …the other part is how I grew up how I was taught and what I learned. I remember talking with… I remember as a child and as a young person growing up the things that were taught to me by my parents and by my grandparents and when people like politicians or whoever would come to the door and my dad would send them on his way and he would explain to us… and my mom as well would explain to us that that is not our way, that that is not our belief, that we don’t participate in that system because it is not part of who we are. And that … and I am well aware that is a general feeling within the community. We don’t participate in voting-type activities, government-type activities like census … and those are well documented, that low turnout, even within Statistics Canada themselves, that low turnout of Aboriginal, Indigenous voter turnout is dismal at best because of the recognition of those systems.

[67] Chief Justice McLachlin set out a concise and useful review of the general principles outlined in R. v. Vanderpeet, 1996 CanLII 216 (SCC), [1996] 2 S.C.R. 507 (S.C.C) and Delgamuukw v. British Columbia, 1997 CanLII 302 (SCC), [1997] 3 S.C.R. 1010 (S.C.C.) in Mitchell v. Minister of National Revenue, 2001 SCC 33, [2001] 1 S.C.R. 911 (S.C.C.) regarding the assessment of oral history evidence in Aboriginal claims cases. Reiterating the general guideline provided in Vanderpeet, she stated that “a court should approach the rules of evidence, and interpret the evidence that exists, with a consciousness of the special nature of Aboriginal claims, and the evidentiary difficulties in proving a right which originates in times where there were no written records of the practices, customs and traditions engaged in”. See para. 27. She stated that this guideline applies to both admissibility of evidence and weighing of aboriginal oral history.

[68] In para. 30, she stated that three “simple ideas” provide the foundation for the diverse rules on the admissibility of evidence generally. The evidence must be useful in the sense of tending to prove a fact relevant to issues in the case; the evidence must be reasonably reliable; and even useful and reliable evidence may be excluded in the discretion of the trial judge if its probative value is overshadowed by its potential for prejudice.

[69] McLachlin C.J. made clear that common sense must be applied to achieve the appropriate balance in each case such that “…a consciousness of the special nature of aboriginal claims does not negate the operation of general evidentiary principles”. See para. 38. She pointed out that there is a boundary between a sensitive application and a complete abandonment of the rules of evidence which must not be crossed. While care must be taken not to undervalue oral history evidence presented by Aboriginal claimants, such evidence should not be “…artificially strained to carry more weight than it can reasonably support”. See para. 39.

[70] In the majority of cases which considered the admissibility and weighing of oral histories, such as Alderville Indian Band v. R., 2015 FC 920; R. v. Marshall, 2005 SCC 43; Couchiching First Nation v. Canada (Attorney General), 2014 ONSC 1076; and White Bear First Nations Chief & Council v. Saskatchwan (Minister of Environment), 2009 SKQB 151, the oral histories that were provided came from authoritative sources such as Chiefs or elders, or from multiple witnesses. In instances where an oral history was provided by a claimant, it was corroborated with other academic sources or other archival oral history recordings that were available for comparison evidence.

[71] Applying this jurisprudence to the evidence of K Hill, I find that while I respect the traditional storytelling as a manner in which history is reserved and related in this traditional manner, the oral history related by her is not corroborated by any other evidence, nor is there evidence K Hill’s mother and grandmother’s authority with respect to oral history. It does not meet the test for usefulness and reliability outlined by the jurisprudence. I cannot give this evidence any weight.

[72] At this interlocutory stage I must make findings based only on the reliable evidence properly filed and accepted by me. It may be that at the fullness of trial, parties may produce more reliable evidence that would rise to the level of being sufficiently probative. However, such evidence is not present on the motion material before me.

[73] On the evidence before me, I make the following findings:

a. The Burtch Road property that consists of approximately 380 acres are located within the lands that are referred to in the Haldimand Proclamation;

b. The Haldimand Proclamation of 1784 gave to the Mohawk and Six Nations people the right to possess and settle upon lands that would include the Burtch Road property for life;

c. Title to these lands remained with the Crown;

d. The Burtch Road property were for many years used by the province of Ontario exclusively as a correctional facility;

e. In 2006, the Douglas Creek Estates protests were settled by a promise that signaled an intention by the Ontario government to return the title of the Burtch Road property to the Six Nations people in accordance with the Haldimand Proclamation. However, the Haldimand Proclamation never transferred title to those lands;

f. The Peterson Promise did express a desire to transfer title to the Burtch Road property from the Ontario Government to the Six Nations people through a process of negotiations that involved four distinct groups referred to as the “Main Table”;

g. The Haudenosaunee Confederacy Chiefs Council agreed to be a part of this main table negotiation process. That process was intended to yield a decision on how title would be transferred and what use of the land was to be made pending transfer;

h. From 2006, the Burtch Road property was remediated by the Ontario Government. Sometime in 2014, that land was able to be farmed and ready to be transferred. A decision was made in 2014 to transfer title to the Six Nations people as represented by the Six Nations Elected Council. That transfer of title took place on March 31, 2017;

i. After the transfer of title, no action was taken by the HCCC, the HDI or K Hill or other defendants in this case to have that deed set aside or to bring a Judicial Review Application against the Ontario Government’s decision to transfer to the title in the manner in which they did.

v. Does Kristine Jill Hill Have a Right to Individually Claim s. 35 Constitution Act Rights in the Circumstances of this Case?

[74] K Hill chooses to be governed by the HCCC. The HCCC chose to participate in a lengthy consultation and negotiation process with respect to the Burtch Road property by agreeing to be a member of the “main table”. That process resulted in the Burtch Road property being transferred to an entity other than the HCCC.

[75] In my view, it does not make any logical or legal sense to allow an individual, who proclaims to have property rights that flow from the HCCC who derive their property rights from a claim rooted in Aboriginal title rights, to separately claim that she has constitutional rights of her own pursuant to s. 35(1) of the Constitution Act.

[76] If that were the case, the Crown would not only need to consult and negotiate with representatives of a group, but then also with each individual member of that group.

[77] Justice G. R. Strathy, as he then was, dealt with the issue of individuals seeking to enforce Aboriginal title and rights in the case of Canadian National Railway Company v. Brant, (2009) 2009 CanLII 32911 (ON SC), 96 O.R. (3d) 734, [2009] C.N.L.R. 47 (ON SC). In that case, there were blockades of the main rail line of the Canadian National Railway (CN) in the Tyendinaga Mohawk Territory (the Territory) in Hastings County. The blockade was by a group of individuals. CN obtained an injunction against the blockade and brought the action before Strathy J. for damages against the protestors. The Defendants in that case counterclaimed for damages for trespass, nuisance and breach of aboriginal rights.

[78] In the CN case, Strathy J. stated at para. 50:

[50] Aboriginal title, treaty rights and Aboriginal rights are a right held by Aboriginal people in common and they cannot be asserted by individual members of the community. To put it in the words used by Prothonotary Hargrave in Wahsatnow v. Canada (Minister of Indian Affairs and Northern Development), [2002] F.C.J. No. 1665, 2002 FCT 2012 (T.D.) (), the claims in this case are not a right that the defendants themselves may claim. If the right exists, it is a right that belongs to the Band and can only be asserted by its lawful representatives or in a representative action.

[51] There is good reason for this. If, as the statement of defence alleges, the Tyendinaga Mohawk Nation has Aboriginal title to the lands in question, any claims for trespass to those lands should be enforced by the authorized representatives of that Nation and not by individuals who may or may not represent its [page751] will. In Kiapilanoq v. British Columbia, [2008] B.C.J. No. 50, 2008 BCSC 54, Parrett J. stated, at para. 25:

In my respectful view, the elected Council representing the Squamish Nation is the proper party with the authority of this defined class of people to conduct a case which is aimed at determining the questions of Aboriginal rights and title. The collective nature of these rights requires an authority from the people who are, in this case, collectively represented by their elected Council.

[52] Although Aboriginal law is evolving, it is settled law that Aboriginal title and Aboriginal rights, such as those asserted in the counterclaim, cannot be the subject of a personal action. These claims are, therefore, dismissed.

[79] The Defendant in this case counterclaims, among other things, for an interlocutory injunction restraining the Plaintiffs from taking any steps to interfere with her right, title, use or enjoyment of the Burtch Road property. She also claims damages in compensation for wrongful eviction, breach of contract, breach of fiduciary duty, interference with contractual relations and interference with economic relations. She also claims punitive, aggravated and exemplary damages. Her total damage claim is for $5,500,000.

[80] Kristine Hill accepts the HCCC as her governing body. However, the HCCC is not a party to this action. The HCCC did not bring a judicial review challenging the Ontario Government’s transfer of the Burtch Road property to the numbered company. I agree with the citations set out in the CN case at para. 51:

[51] There is good reason for this. If, as the statement of defence alleges, the Tyendinaga Mohawk Nation has Aboriginal title to the lands in question, any claims for trespass to those lands should be enforced by the authorized representatives of that Nation and not by individuals who may or may not represent its will.

vi. Kristine Hill’s Claim that the SNEC Acted Improperly When Deciding to Evict Her

[81] Kristine Hill submits that the SNEC is the Crown and owes a duty to consult with her. I reject this submission. The SNEC is considered to be a Board for the purposes of Judicial Review under the Federal Courts Act only. I agree with counsel for the Plaintiff. It would be ludicrous to suggest that the Federal Government who is the Crown would have a duty to consult with SNEC who would be the Crown according to the Defence.

[82] Kristine Hill submits that the SNEC’s authority is determined by the Indian Act and its regulations, along with regulations passed by the SNEC that are properly enacted in accordance with the Indian Act. She submits that the decision to evict her needed to be made at a public meeting with proper notice of the meeting and a clear agenda for that meeting. She argues the decision to evict her was made improperly at an in camera meeting with no notice and no agenda served. I do not agree with this submission.

[83] The regulations properly enacted by the SNEC allow for an in camera meeting to be held with respect to decisions that relate to litigation. I find that the decision to serve Kristine Hill with a Notice to Vacate was a necessary step in a litigation proceeding involving trespass. As such, the meeting was properly constituted and properly conducted.

[84] An additional argument advanced by Kristine Hill is that the SNEC did not provide minutes of the meeting and that there was no way to determine if a proper quorum was present at that meeting. I do not agree with this submission. The summary of the meeting that was provided clearly set out the members of the SNEC who were present at the meeting. That in itself would allow anyone to determine if a quorum was present.

[85] Moreover, these claims were only brought out in the answer and counterclaim that was filed after the deadlines that I set out in my Order of June 28, 2017. The Plaintiffs did not have a proper opportunity to file reply evidence.

[86] In addition, there was no application for judicial review by any of the Defendants with respect to the complaints they now raise in their answer. I find that it is an abuse of process to bring these claims up in an answer filed outside of the set timelines for the motion. In Behn v. Molton Contracting, 2013 SCC 26 at para. 37, the Supreme Court stated:

[37] In my opinion, in the circumstances of this case, raising a breach of the duty to consult and of treaty rights as a defence was an abuse of process. If the Behns were of the view that they had standing, themselves or through the FNFN, they should have raised the issue at the appropriate time. Neither the Behns nor the FNFN had made any attempt to legally challenge the Authorizations when the British Columbia government granted them. It is common ground that the Behns did not apply for judicial review, ask for an injunction or seek any other form of judicial relief against the province or against Moulton. Nor did the FNFN make any such move.

[87] Similarly, I find that the failure to bring any judicial review and only bring these claims up in an answer represents a collateral attack and is an abuse of process.

vii. Can the SNEC Hold Title to Land Not on the Reserve?

[88] The Defence argues that the title to the Burtch Road property cannot be granted to the SNEC. They submit that although the title is registered with 964 Limited, the Nominee/Trustee agreement gives complete control over the lands to the SNEC. The SNEC derives all of their authority from the Indian Act. It is argued by the Defence that the Indian Act does not give authority to the SNEC to hold title to land that is not on the reserve.

[89] The Plaintiff submits that the Indian Act does not prevent title to land being held by the SNEC. Nevertheless, they submit that the property is owned by a corporation and that powers to act are not derived from the Indian Act; they are derived from corporate law in general. The sole shareholder of the numbered company has a sole declaration agreement similar to a unanimous shareholders agreement. For all practical purposes, the numbered company must act at the direction of the elected counsel. However, the powers of the numbered company are still within corporate law.

[90] Justice Turnbull considered a similar issue in Ah’she hodeeheehonto v. Bomberry, 2010 ONSC 3701. In that case, certain individuals, Lonny C. Bomberry, Howard E. Staats and Thomas W. Loft took title to lands adjacent to Reserve No. 40. That Reserve is the reserve occupied by the Six Nations of the Grand River Band. Title was taken in trust for the Six Nations for the Six Nations of the Grand River Indian Band. This decision suggests that it is acceptable for an entity other than the band council to hold land in trust for the Six Nations for an interim period of time while the land is in the process of being added to the reserve.

[91] The parcels of land in the case before Turnbull J. were set aside in anticipation of expanding the existing reserve land base in order to accommodate future growth. (See also: Gitga’at Development Corp. v. Hill, 2007 BCCA 158).

[92] I find that this mechanism of transfer of the Burtch Road property to the numbered company was carefully chosen. Title has been given to a corporate entity that is managed by a trust agreement. That agreement provides for the SNEC to manage this property. The evidence is that the SNEC intends to apply to the Federal Government to have these lands be a part of the reserve to be used for the benefit of all of the Six Nations band members. I am of the view that mechanism or title transfer with the purpose of bringing the lands within the reserve is proper and legitimate. The actions of the SNEC were very similar to their actions in the case before Justice Turnbull.

[93] Justice Turnbull also commented in the above case at para. 18:

[18] I find that this application has nothing to do with land claims. The ongoing case of Six Nations of the Grand River Band of Indians v. The Attorney General of Canada and Her Majesty in Right of Ontario, Court File Number 406/95, commenced in Brantford, deals with a land claim. In that action, the Six Nations elected Council, on behalf of all of Six Nations, is prosecuting a claim against Canada and Ontario for an accounting of the land and money it alleges it should have received from the Haldimand Proclamation of 1784 and which land was removed by so-called “surrenders”. The application before this court deals with trespassing by the applicant on land in which he has no lawful interest.

[94] The case described as Court file number 406/95 has yet to conclude. I agree with Justice Turnbull that this case, as with his case, deals with trespass and nuisance.

[95] Following the court’s holding in Gitga’at Development Corp. v. Hill, 2007 BCCA 158 at para. 27, I also find that evidence demonstrates that the SNEC had the authority to conduct the business of receiving title to land off the reserve. The Court of Appeal in Gitga’at Development Corp states:

A Band Council may sue and be sued and enter into contracts on behalf of the Band it represents: Joe v. Findlay (1987), 1987 CanLII 2728 (BC SC), 12 B.C.L.R. (2d) 166 (B.C. S.C.); Telecom Leasing Canada (TLC) Ltd. v. Enoch Indian Band of Stony Plain Indian Reserve No. 135 (1992), 1992 CanLII 6177 (AB KB), [1993] 1 W.W.R. 373 (Alta. Q.B.) ["TLC"]; Wewayakai Indian Band v. Chickite (1998), 1998 CanLII 3974 (BC SC), [1999] 1 C.N.L.R. 14 (B.C. S.C.); Clifton. In TLC, the Court wrote about a guarantee the Band had given:

Although the Band Council is clearly a creature of statute, deriving its authority solely from the Indian Act (Paul Band v. R. 1983 ABCA 308, [1984] 2 W.W.R. 540 (Alta. C.A.) at 549), it by necessity must have powers in addition to those expressly set out in the statute. This was recognized by the British Columbia Supreme Court in Norman Lindley et al. v. Derrickson (29 March 1976) [unreported] wherein it was held that a "Band Council must have the implied power to bring legal proceedings on behalf of the Band" [p. 84]. In this regard I accept the suggestion Jack Woodward advances in his book Native Law (Toronto: Carswell, 1989) at 166:

It may be said that Band Councils possess at least all the powers necessary to effectively carry out their responsibilities under the Indian Act, even when not specifically provided for. There is an implied power to contract, without the need for authority in the Indian Act.

viii. Conclusion with Respect to Claimed Rights to the Burtch Road Property

[96] I find that the Defendant, K Hill and others have not demonstrated that there is a lawful justification to enter upon and remain on, be in possession of and use the Burtch Road property.

[97] The Plaintiffs have legal title to these lands and a right to their use and enjoyment as owners.

D. Irreparable Harm

[98] At the second step of the RJR-MacDonald test, I must consider whether the Plaintiffs will suffer irreparable harm if the injunction is not granted.

[99] Like Cunningham A.C.J.S.C.J. in Frontenac, I find that the Plaintiffs in this case will suffer irreparable harm if injunctive relief is denied. The ability of the SNEC to execute its planning on behalf of the Six Nations of the Grand River, as they are charged to do so pursuant to the Indian Act, is effectively blocked by the actions of the Defendants. The SNEC has taken title to the Burtch Road property. They were in the process of working with the SNFA to farm the lands. In addition, they have already been allotted funds from the Ontario Government to allow for tiling and drainage of the lands in order to make the lands suitable for planting of winter wheat by the SNFA.

[100] The SNEC is consulting with its members in order to make a determination with respect to the future use of the Burtch Road property that would best result in a benefit to the Six Nations community as a whole. The SNEC also plans to make an application to the Federal Government to have the lands become part of the reserve lands. All of this planning and interim use of the Burtch Road property is stalled by the continued occupation and use of the Burtch Road property by Kristine Jill Hill and the other Defendants. The ability to govern pursuant to the framework that is set out in the Indian Act is being thwarted by the actions of the Defendants.

[101] In Hamilton (City) v. Loucks, (2003) 2003 CanLII 64221 (ON SC), 232 D.L.R. (4th) 362, [2003] O.J. No. 3669 (ON SC), Henderson J. observed at para. 31:

[31] Therefore, again, where it is alleged that a municipal by-law is being breached the emphasis for injunctive purposes is on whether or not there is a serious question to be tried. If the plaintiff satisfies the first criterion, the usual remedy is for the court to grant an interlocutory injunction that restrains the ongoing breach. Again, I add that there may be exceptional cases in which the usual remedy is not appropriate.

[32] The same analysis has been made where an injunction is sought to prohibit ongoing civil disobedience by a defendant. There is no doubt that there is a strong public interest in ensuring that all of the citizens in our society obey the law. Therefore, there is a presumption that the courts will grant interlocutory injunctions to compel compliance with the law as opposed to denying the injunction so that a defendant may continue to break the law. Any court tolerance of a continuing breach of the law will be extremely rare.

[33] The British Columbia Supreme Court dealt with this issue in the case of Vancouver (City) v. Maurice, [2002] B.C.J. No. 2645 (QL) [reported 28 C.P.C. (5th) 124], at para. 16 as follows:

The court is ultimately responsible for the administration of justice. Its task is to enforce the law which the people of this province are entitled to have enforced. Any discretion the court may have to permit unlawful conduct involving large numbers of people must be very narrow indeed and arise only in circumstances that are truly exceptional.

[34] Moreover, in the case of Attorney General of Ontario v. Bear Island Foundation (1989), 1989 CanLII 4242 (ON SC), 70 O.R. (2d) 758, 63 D.L.R. (4th) 756 (H.C.J.), Justice O'Leary dealt with a motion that was very similar to the case that is before this court. In the Bear Island case a group of protestors had established a blockade for the purpose of preventing the construction of a road extension. Justice O'Leary, in considering the issue of civil disobedience as well as the issue of interference with the plaintiff's property rights, wrote the following at pp. 760-61:

The defendants have no right to interfere with the construction of the road yet they are doing just that. Only at its peril will our society allow anyone to flout the law. The Attorney-General as protector of public rights and the custodian of the public interest is entitled to seek an injunction against those flouting the law. In such case, the Attorney-General does not have to show that irreparable harm will result if the injunction is not granted.

[102] Justice Henderson went on to state at para. 47:

[47] This is an attractive argument that was made eloquently and with considerable passion. However, ultimately this argument must fail. Whether the defendant likes 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.

[48] To express it another way, it is not for this court to wrest control of the property from the hands of the people who were duly elected by the citizens of Hamilton to govern the City and its lands, and to effectively put control of the property into the hands of an ad hoc, self-appointed, albeit well-meaning, group of individuals.

C. Balance of Convenience

[103] The third step of the RJR-MacDonald test involves a balancing of convenience, looking at harm for both parties.

[104] I accept the proposition expressed by Justice Ramsay in 1536412 Ontario Ltd. V. Haudenosaunee Confederacy Chiefs Council, (2008) 171 A.C.W.S. (3d) 236 at para. 24:

[24] There can be no inconvenience in being required to refrain from interfering with the lawful use and enjoyment of property: (Brantford (City) v. Montour [2008] CareswellOnt 3630.

[105] The Defendants claim that she will lose substantial sums of money if the injunction is granted. In my view, her argument in this regard fails on three grounds. First, the Plaintiffs have given their undertaking to pay damages if they are not successful at trial. Second, the Defendant Kristine Jill Hill was the author of her own misfortune by planting crops after she was served with a Notice to Vacate. She gave evidence that prior to May 18, 2017, the date on which she was given a Notice to Vacate, “all of the preparation for getting the fields ready took place but the actual physical planting did not occur until after May 18, 2017.” Moreover, she did not take any legal action to contest the title transfer by the Ontario Government. Instead, she resorted to self-help and in my view self-created risk of damage by planting crops at a time when she knew there were, at a minimum, significant legal issues surrounding this property. She cannot create the risk and then claim irreparable harm. Third, the evidence disclosed that HDI had committed to provide financial assistance to Kristine Hill.

[106] In considering the balance of convenience, I find that Kristine Hill would not be “out of business” as she claimed, if she were not allowed to farm on the Burtch Road property. On the evidence on this motion, I find that she admitted that she previously farmed tobacco on the lands for many years. In 2013, she farmed 300 acres. In 2014, she farmed 400 acres. She also admitted that she is presently farming more than 100 acres of farm land in addition to the Burtch Road property.

[107] Kristine Hill stated that she has given back to the community from the money she has earned from farming. She argues that the fact that she has put on a harvest festival has allowed the community to share in the fruits of her labor.

[108] The evidence of Lonney Bomberry was vague on the exact amount of money that was given back to the community through the SNFA. He admitted in cross-examination that the SNFA may have given back anywhere from 10 to 15 to 20 per cent of their profits. He stated that he was not aware of the specifics.

[109] I find that the factor that distinguishes the SNFA, supported by the SNEC, and Kristine Hill, supported by the HCCC, is that the SNEC is accountable to the Band that it represents. Kristine Hill is not accountable for the conduct of her private business.

[110] I find that the Plaintiffs are being denied immediate access to the lands they have title to. The planting of any winter crop is in jeopardy. In addition, for any crop to be planted in the 2017/18 growing season, K Hill admitted that you need to plan one year in advance to farm the land successfully. This planning is being denied to the Plaintiffs.

[111] Another factor that is important on any analysis of harm and balance of convenience is the fact that the tiling and drainage plans of the Plaintiffs is also delayed by their inability to enter, occupy and use the Burtch Road property.

[112] I find that all three components of the RJR-MacDonald case are present and an order shall go as requested.

IV. ORDER

[113] There shall be an Order in accordance with the moving party’s factum, dated June 9, 2017, Tab B (1).

[114] The Defendants Brian Poreba and Kevin Banks did not file an answer nor did they respond to the motion or take part in the proceedings to any degree. The Order set out in para 113 shall apply to each of those Defendants.

[115] If counsel are unable to agree on costs, they are to provide written submissions no later than October 25, 2017. Such submissions to include a summary of their Bill of Costs and no longer than 5 pages of submissions in relation to costs.

Released: September 22, 2017 ______________________

Harper, J.