A decision has been handed down about the recent court proceedings against the Land Defenders at the HCBP site. As you may already know, the City of Guelph had pursued an injunction to force us off the land so they could continue contsruction, and we filed our own injunction to convince the court to stop the City from construction, based on various issues relating to threatened species on site.
The decision was given this morning – both injunctions are granted. This means that the City got their injunction to keep people from occupying the site… but it also means that we got our injunction preventing work from continuing!
Basically, the judge has granted authority to the provincial MNR, and most specifically, the top person in the MNR, Donna Cansfield. Whereas before the MNR did not have the legal authority to issue a work stoppage – even though their opinion remains that the construction should never have begun, nor should it proceed – now that power has been granted to the MNR by the court. So, it remains up to us to ensure that the staff in the MNR, and the Minister herself, continue to stand by what they have been saying all along, and prevent this work from continuing. We are asking everyone to contact her, and that info is at the end of this.
Below are a few relevant paragraphs:
“In this case, as part of the public policy considerations reflected in the substantive provisions of the Endangered Species Act (ESA) itself, the Legislature has chosen to confer enforcement power on the Ministry of Natural Resources and, in some respects, on the Minister. Specifically, the Minister has power to determine the very matter in issue in the Defendants’ motion for an injunction: namely, whether work on the project should be stopped, and if so, to what degree and for how long, because of some anticipated negative impact on the habitat of the Jefferson Salamander. The Minister can make that assessment on an ongoing basis, and is in a much better position to assess the competing policy considerations, as well as legal considerations, than is the Court.
“It is for the Minister to decide whether the circumstances are such that an order under s.28(1) of the ESA is justified, and if so, whether her discretion should be exercised to grant one. She may decide that the informal monitoring by the MNR is sufficient. These considerations are for the Minister, and it is not for the Court to usurp the Minister’s authority. The residual jurisdiction of the Court to grant injunctive relief should be sparingly exercised, and should be excerscised in aid of, rather than in substitution for, the jurisdiction of the Minister.
“I will grant an injunction to prevent any further work on the culvert and the road leading up to it for a period of up to 30 days. That wil give the Minister enough time to decide whether she will make an order pursuant to s.28 of the ESA. If the Minister issues an order under s.28, or if she signifies, in writing, that she does not intend to isue such an order, my order will terminate. If the Minister does nothing, my order will expire 30 days from today.”
After talking with our lawyer, Eric Gillespie, we have learned that this is an unprecedented legal decision in Canada. While most of us involved in the occupation understand the courts as operating part-and-parcel with the rest of the power structures, we are grateful that now others in similar situations as us may be able to use this case as case law to prolong similar land occupations, and add one more tool to the toolbox that we can use in defending the land.
Above all, the struggle to defend this land is not over. For now, we are asking everyone possible to contact the Donna Cansfield, the Minister of Natural Resources. Please call her, email her, and/or send her snail mail – and tell everyone you know to do the same – urging her to maintain and enforce the prior position of the Guelph MNR, which is that the HCBP should not proceed . See below for copies of the MNR’s correspondence with the City if you want to gain a better understanding of what they have been saying.
Minister of Natural Resources
6630 Whitney Block, 6th Floor
99 Wellesley Street West.
Toronto, ON M7A 1W3
The full decision on the injunctions: Gray’s Decision
The MNR’s May 25, 2009 letter to the City: May 25
The MNR’s July 31, 2009 letter to the City: July 31