Kingston Court: June
2, 2008
Justice Cunningham presiding.
Issues before the court were as follows:
1) Second round of Contempt of Court charges against:
Ardoch Algonquin First Nation represented by Chris Reid:
Elder Bob Lovelace
Co-Chief Paula Sherman
Elder Harold Perry
2) First time Contempt of Court charges against:
Non-natives represented by Linda McCaffrey of Ecojustice:
Sheila McDonald
Beth Robertson
Oskar Graf
Eileen Kinley
Don Hanam
Non-native represented by Michael Swinwood:
Sulyn Cedar
3) Lawsuit filed against the federal and provincial government by the
Shabot Obaadjiwan First Nation, with supporting documentation.
Shabot Obaadjiwan represented by Steve Reynolds:
Chief Doreen Davis
War Chief Earl Badour
OPP represented by Mr. Diana.
Frontenac Ventures Cooperation (FVC) represented by Neal Smitheman.
The Ontario Government had a new legal representative present, Mr. Brown.
Mr. Brown replaces Owen Young, the previous Crown legal representative
who has now been appointed to the Truths and Reconciliation Board responsible
for hearing witnesses on The Aboriginal Residential School Affair.
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Over 150 people came to support those charged. The courtroom could only
accommodate 30 people so the rest waited outside of the locked door or
listened in through open windows.
Judge Cunningham apologized for the lack of space, stating that he did
try to accommodate more people but the larger courtroom was being used
and he did not have any control over this.
Issues to be addressed:
1) The second Contempt of Court charges against the three members of the
Ardoch Algonquin First Nations:
Smitheman (FVC): FVC will not be proceeding with the warrants of the arrest
of Robert Lovelace, Paula Sherman and Harold Perry.
Business to be dealt with:
-Submissions regarding costs.
-Asking for extensions of time to submit these costs.
Reid (AAFN): The court of appeal in Toronto stayed the fines for AAFN
and reduced the sentence of Bob Lovelace to time served.
Reid stated that he still did not have the reasonings for the Court of
Appeal decision. Their reasonings may reveal that the Province of Ontario
could have avoided all of this by agreeing to stay in the mediation process.
Reid stated that they would be looking for costs to be covered by FVC
and the Ontario Government but they wish to wait until the reasoning of
the Court of Appeal came through.
Judge Cunningham: Adjourned this matter until the reasonings from the
Court of Appeal were released.
Brown (The Crown): Stated that the Crown would like an opportunity to
respond to this matter when the time came.
Smitheman (FVC): Pointed out that The Court of Appeal did not bring into
question the actual injunction, only the sentencing of the AAFN.
2) The first time
Contempt of Court charges:
Linda McCaffrey (Ecojustice): Stated that her clients are members or support
the actions of CCAMU (The Community Coalition Against Mining Uranium)
who are lobbying the government to reform the Mining Act and are calling
for a moratorium on uranium mining in Eastern Ontario. They are not doing
this for their own self-interests and should be considered Public Interest
Litigants.
Smitheman (FVC): Frontenac Ventures will not be pursuing these Contempt
of Court charges but reserves the right to do so in the future.
McCaffrey: "How do the OPP plan to proceed?"
Diana (OPP): The OPP issued warrants as ordered by Judge Cunningham. They
did not independently issue a summons to appear in court and do not hold
an opinion on the matters before the court. They were following the orders
given by Judge Cunningham that were initiated by Frontenac Ventures.
Judge Cunningham: The warrants against the non-natives would be discarded.
McCaffrey (Ecojustice) submissions:
McCaffrey asked for costs against FVC and the OPP to be awarded to her
five clients.
Reasoning for costs against the OPP:
McCaffrey argued that Judge Cunningham's orders state that anyone supporting
the two Algonquin First Nations could not come within 200 meters of any
Frontenac Ventures employee. This has been interpreted by the OPP to mean
that these supporters are not allowed to come within 200 meters of the
mine site gate but the injunction states:
Section 15, paragraph f
"Further, any representative of the A.A.F.N., Shabot or any one supporting
their position or associated with them in any way is restrained from disrupting
or hindering any archaeological work by Frontenac, its officers, employees
or consultants on either the Clarendon site or exploration property and
are restrained from coming within 200 m. of any Frontenac officer, employee
or consultant undertaking archaeological work on either the Clarendon
site or the exploration property, with the exception of bona fide hunting,
trapping or fishing activities during the applicable season in groups
of four people or less."
Judge Cunningham questioned the amount of costs and the length of time
McCaffrey had been working on this case.
Reasoning for costs against FVC:
McCaffrey had to write Smitheman (FVC) three times before he informed
her, on May 20th, that they would not be proceeding with the charges.
By this time McCaffrey had already spent considerable time on the case
as she assumed that it was proceeding. She knew that the OPP had submitted
the officer's notes to FVC.
Grounds for Costs:
The OPP had no justification for the actions. They had no right to detain
her clients and no right to issue the summons.
FVC had no justification for the delay. The issue should have been dealt
with in a timely matter.
Her clients should be considered Public Interest Litigants and both the
OPP and FVC were attempting to suppress open public discussion on a serious
matter of public concern. To use the court process to suppress a public
discussion was a grave matter.
(Background on Public Interest Litigants from McCaffrey:
" A public interest litigant is a person who is engaged in litigation
involving issues of interest to the general public and who is engaged
out of a concern for the public interest and not for financial gain. This
is a special kind of litigant to whom the ordinary costs rules are not
applied in legal proceedings. The usual rule is that the winner of the
case gets some money from the loser towards the payment of his/her costs.
The rule for public interest litigants is that if they win, they get costs
but if they lose they don't have to pay them. This is because the courts
recognize that ordering them to pay costs would deter people from instituting
proceedings to protect a public right out of fear of having to pay the
opponent's costs if they lose the case. The courts have recognized that
the protection of the public right is so important, that people who do
it should be encouraged not penalized.")
McCaffrey cited evidence that her clients were simply trying to meet with
OPP officers from the Major Events Liaison Team (MELT) to determine where
they could legally erect a sign regarding the potential uranium mine.
They are trying to lobby the government to reform the mining act and prevent
a uranium mine in their community. They also support the First Nations
in defending their land.
McCaffrey pointed out that the charges were a serious matter that could
affect her clients in the future. These people are now known to the police
and she is concerned that the OPP has released private information, about
her clients, to FVC.
Diana (OPP) response: The OPP should not be held responsible for costs
as the police have an objective position in this situation.
He went on to say that if McCaffrey felt that her clients were unjustly
summonsed then there was an official avenue to deal with improper arrests
and she should use that channel to lodge a complaint. The OPP were simply
following Judge Cunningham's Interlocutory Order. Regarding the officer's
notes, the judge told the OPP to give these documents to FVC. The OPP
has made no commitment to proceed beyond what they have already done.
McCaffrey questioned: "If the OPP or FVC were not proceeding, why
were the settlers still summoned to court today?"
This has caused difficulties in the lives of the acussed. One client had
to leave Alberta to come back to these proceedings. She was there to be
with her son at the birth of her first grandchild.
Judge Cunningham:
Why did she do that?
McCaffrey: Because the summons stated that she was to appear in court.
Diana (OPP): The OPP served the summons because they were following the
orders of the court and these orders were brought about because of FVC.
Smitheman (FVC) response: FVC does not feel that McCaffrey should have
proceeded to do anything about the warrants until she received notice
to do so. There was nothing to be done, so the work that she did was a
waste of time.
"McCaffrey is the author of her clients' own misfortune." Said
Smitheman
FVC did not stifle public discussion and her clients are not Public Interest
Litigants. There are no reasons to pay costs, as McCaffrey is a part of
Ecojustice who does pro bono work for their clients.
"This is an academic fraud to manufacture a case created by Ecojustice
and the University of Ottawa." Said Smitheman
Smitheman claimed McCaffrey was abusing the court system by building a
case.
McCaffrey's response: The warrants were issued in March 17th and it took
until May 20th for Smitheman to respond. Ecojustice was not trying to
mount a case. The OPP put her clients at a genuine risk of prosecution.
They claim that a protest was happening at the gate of the mine site when
really they were there to meet with the OPP to discuss the erection of
a sign.
Ecojustice may pay the bill for legal fees to defend her clients but she
still must bill them for out of pocket costs. Her clients are entitled
to have their legal costs covered, as they are not acting in their own
interests but the interests of the general public. Ecojustice covers legal
fees to encourage more lawyers to take on these types of cases.
Judge Cunningham agreed to receive a submission on the costs for McCaffrey's
clients and would make a decision at a later date.
Submission by Michael
Swinwood representing Sulyn Cedar:
Swinwood asked that the three summonses issued for Sulyn Cedar to be formally
cancelled by Judge Cunningham.
Judge Cunningham agreed and made the formal cancellation.
Swinwood asked for costs to be covered.
Judge Cunningham agreed to review his submission regarding costs.
Swinwood argued that the Interlocutory Order should be stayed.
Judge Cunningham stated that he is unwilling to do this. Another judge
would be assigned to this case and it could be taken up with them.
Steve Reynolds representing
the Shabot Obaadjiwan First Nation:
Reynolds filed a lawsuit against the federal and provincial government
with a full written submission. He requested the submission to be sealed
as it contained confidential information that should not be made public
at this time. Given the nature of the evidence, Reynolds asked to meet
with Judge Cunningham in his chambers to give his submission.
(Background to the Shabot Obaadjiwan lawsuit: The Shabot Obaadjiwan of
the Algonquin Nation has submitted a lawsuit against the Government of
Canada, the Federal Minister of Indian and Northern Affairs and the Government
of Ontario regarding exploration for uranium on Algonquin lands. They
also seek to add Minister Bryant, Ontario Minister for Aboriginal Affairs
and Minister Gravelle, Ontario Minister for Northern Development and Mines.
The lawsuit is based on the constitutional right of First Nations to be
consulted before development takes place in their traditional territory.
The suit alleges that neither Ontario, nor Canada has acted to protect
the Constitutional rights of the Algonquin. As there is no treaty between
the Algonquin and Canada with respect to these lands, Canadian law stipulates
they cannot be developed without the consent of the Algonquin. Neither
Canada nor Ontario have consulted with the Algonquin about uranium exploration,
despite the fact that the staked land is part of a Comprehensive Land
Claim that is under ongoing negotiation with Ontario and Canada.
Chief Doreen Davis, of the Shabot Obaadjiwan First Nation, is one of 16
Algonquin Negotiation Representatives (ANR). ANRs are elected from 10
Algonquin communities to negotiate along side of the independent Negotiator
Bob Potts. They are tasked with the responsibility of negotiating a modern
day settlement for the Algonquin's of Ontario.)
Reynolds (Shabot Obaadjiwan): Reynolds stated that the Ontario Government
had yet to consult with the Shabot Obaajiwan First Nations. He asked that
the Interlocutory Order be stayed until the Crown agrees to consult.
Smitheman strongly disagreed with this request stating, "Your Honour,
it would be an extreme prejudice for FVC if you stayed the Interlocutory
Order."
Judge Cunningham stated that he would not stay the Interlocutory Order
but Reynolds could move to fully argue the case to the next judge assigned.
Judge Cunningham went on to ask, "Has there been any movement on
consultation?
Reynolds replied, " (pause) No. (pause) Frontenac Ventures may begin
drilling at any time and we cannot initiate proper consultation with this
hanging over our heads."
He went on to speak about the difficulties of consulting with the Crown
until the court order was stayed.
Response from Mr. Brown (The Crown): "We are not adverse to consulting."
Response from Reynolds: Your Honor, you have said that this is a political
issue and should be dealt with outside of the court. If the Crown is now
saying they are willing to consult."
Brown (The Crown): "That is not what I said."
Judge Cunningham: "Maybe this issue can be discussed outside of court
and with my blessing!"
Reynolds: "Is the crown is willing to consult?"
Mr. Brown agreed to be in contact with Reynolds about the matter of consulting
with the Shabot Obaadjiwan First Nation.
Judge Cunningham repeated, "If another judge wants to stay it the
Interlocutory Order, they can do this."
At the last moment Smitheman (FVC) asked that the John and Jane Doe warrants
be extended to July 31st. Judge Cunningham agreed.
Judge Cunningham dismissed the court and met with Reynolds in his chambers
to hear the Shabot Obaadjiwan's submission for the lawsuit against the
federal and provincial government.