An Ontario Superior Court judge has called a sweeping halt to a Six Nations' campaign against development on land in the Brantford area that the reserve claims as its own.
In a judgment released late last week, Judge Harrison Arrell ordered protesters from Six Nations to stop blockading construction sites, cease threatening workers and told the reserve's so-called development institute to quit demanding unauthorized fees and levies.
While the judge didn't outright describe the Haudenosaunee Development Institute's practice of demanding fees from developers as extortion, the language he used made it clear he believed a shakedown was just what was going on.
"I find as a fact that in practice and into the future, it was the intention of HDI to require all developers of undeveloped land to apply to it for a permit, pay the requisite fee and ultimately comply with all HDI requirements - all without any legal authority to do so," Judge Arrell wrote.
"If they did not, their projects would be shut down."
He cited two particular examples where HDI had demanded fees - $3,000 from a hotel under construction and $7,000 from a manufacturer planning to build a plant in an industrial park of the southwestern Ontario city of 96,000, once better known as Wayne Gretzky's home town.
The manufacturing company, Judge Arrell said, refused to pay the $7,000 "and the site was shut down regularly."
Ultimately, the company gave up, and is now suing the City of Brantford.
In fact, the judge found, such intimidation was a tactic regularly used by protesters as they "systematically blockaded" work sites starting in 2007.
"These activities escalated into 2008 such that for all intents and purposes, these projects came to a halt," he said, adding that evidence was undisputed that stoppages and confrontations were almost "a daily occurrence."
The case centred on two City of Brantford bylaws, passed in May of 2008 when the blockades were at their height, which prohibited interference on as many as 10 local construction sites and "any unauthorized group" from demanding fees.
The judge found the bylaws were properly passed, and dismissed the protesters' claim that they were being denied their right to free assembly.
"The City is not seeking to prohibit protest or assertion of rights," the judge wrote.
"It is, however, seeking to prohibit unlawful activity which includes violence, threats, intimidation, the prevention of access to property on city streets and the collection of illegal fees and tariffs by unauthorized individuals."
The HDI was created, according to evidence at the protracted hearings, by the Haudenosaunee Confederacy, the traditional, unelected chiefs of Six Nations, in order to bring "process … over their lands in the Haldimand Tract."
The HDI and Confederacy claim all lands within that tract, which runs six miles on either side of the Grand River and includes Brantford and, interestingly, Douglas Creek Estates in the nearby small town of Caledonia, Ont., site of the area's most notorious occupation.
The lands in question, the judge found in accepting the expert report of Joan Holmes, were in fact "properly surrendered" for sale by Six Nations chiefs in 1844 when they created the boundaries of the reserve, which basically sits between the two municipalities.
Judge Arrell said he found comfort that Ms. Holmes' opinion is correct in the fact that Six Nations, "despite 25-30 years of archival research on their own", have never filed legal proceedings for return or title of the land. A lawsuit filed in 1995 and now dormant seeks only financial compensation.
The judge was required to make only a preliminary assessment of the strength of the Six Nations' claim, but pronounced it "exceedingly weak" at one point in his decision and a "very weak case" at another.
The protests in Brantford began after Six Nations' protesters first occupied Douglas Creek Estates, a residential development then under construction in Caledonia, in 2006. The DCE site is part of the same tract.
Largely because the Ontario government treated the Caledonia occupation purely as a land claim, and because the Ontario Provincial Police took a hands-off approach to lawbreaking, the protesters were astonishingly successful there.
Six months after the occupation began, Queen's Park bought DCE from the developers and used the purchase to argue in court that an injunction to remove protesters wasn't necessary any longer.
Though the worst of the lawlessness in Caledonia - occupiers burned a bridge, trashed a Hydro transformer, set up barricades around town, imposed a native-issued 'passport' for residents and established arbitrary curfews - is over, DCE still is effectively a no-go zone for the OPP, a de facto part of Six Nations and a local eyesore.
It was only with the Caledonia success behind them that Six Nations activists, arguably emboldened, moved on to sites in Brantford and employed the some of the same tactics.
These blockades were so frequent, the rule of law so threatened, the judge said, that "the economy of this small city is at risk … the tax base is at risk".
Déjà vu all over again, as Yogi Berra famously put it.