Both sides claim victory in Hanlon Creek development case

Thursday, August 13, 2009

  • A group of protesters held a press conference on the Downey Road entrance to the site this afternoon. (Greg Beneteau)

    A group of protesters held a press conference on the Downey Road entrance to the site this afternoon. (Greg Beneteau)

Written by Greg Beneteau

Both sides are claiming victory in the legal battle over the Hanlon Creek Business Park.

In his decision released this morning, Ontario Superior Court Justice Douglas Gray granted an injunction request by the City of Guelph and Belmont Equity to block protesters occupying the proposed development site from "trespassing and interference with construction activities."

He also handed protesters a victory, ordering a month-long injunction against further construction while the Ministry of Natural Resources weighed in on the protection of an endangered species.

The judge's 25-page ruling included a strong rebuke for the occupiers, who had been occupying the site of a proposed culvert since July 27.

If the defendents wanted to stop development of the park, they should have gone through the appropriate legal channels, Justice Gray wrote in his ruling.

"Belief in the rightness of one's cause does not confer any right to bypass the courts and do what one pleases," he said. "The courts look with disfavour on self-help of this nature."

The protesters had filed an injuction of their own, asking the court to stop construction based on evidence their may be Jefferson Salamanders on the site.

The Jefferson Salamander is a protected species under Ontario's Endangered Species Act.

The Guelph District Manager of the Ministry of Natural Resources, Ian Hagman, testified during court proceedings that his staff recommended the city stop construction of the culvert, due to the risk Jefferson Salamander habitat could be destroyed.

However, Hagman admitted the ministry did not have the necessary regulations in place to issue a stop worker order under the Enangered Species Act.

In his decision, Justice Gray found that responsibility for enforcing the Act rested with the Minister of Natural Resources, Liberal MP Donna Cansfield.

As such, the court could not intervene in determining whether it was appropriate to halt construction due to the potential risk of destroying Jefferson Salamander habitat, he ruled.

“These considerations are for the Minister, and it is not for the Court to usurp the Minister’s authority,” Justice Gray wrote.

However, Justice Gray said he found “no evidence” whether Minister Cansfield intended to issue a stop work order or not.

As such, he determined continuation of such work “may prevent, or at least seriously limit” a decision from her, which had the potential to cause “irreparable” damage to salamander habitat.

“There is obviously a serious issue to be tried, at least by the Minister, as to whether a stop work order should be issued,"Justice Gray wrote. "If the injunction is not granted, the work is commence, and habitat is destroyed, the harm will be irreparable.”

Consequently, Justice Gray issued a 30-day injunction prohibiting the city from continuing any work on the site.

The judge acknowledged the order would expire September 12, three days before a deadline set by the MNR to complete the culvert in order to avoid disrupting fish migration. If the project were postponed until next year due to the delay, “so be it,” he wrote.

The injunction could be cut short if the Minister Cansfield decided to issue a stop work order under the Endangered Species Act “or if she signifies, in writing, that she does not intend to issue such an order,” Justice Gray ruled.

Both sides pleased with outcome

Mayor Karen Farbridge expressed satisfaction with the judgment, saying it was consistent with the City of Guelph's position.

"We're obviously pleased that we were successful in obtaining an injunction to restrain the persons from trespassing and interfering with the construction activities," Farbridge said.

"The court also agreed with the city... that the Ministry of Natural Resources does have authority under the Endangered Species Act with respect to the work being undertaken by the city."

Frabridge declined to speculate whether the city would be able to finish construction of the culvert before the September 15 deadline.

She said the city “has been working, and will continue to work” with ministry staff pending a decision.

The protesters saw things differently, saying the city had been caught trying to rush the project through despite the ministry’s objections.

“Even while they were in court that morning, they already knew that up until that day the MNR was saying, ‘Do not go ahead with this development,’” said spokesperson Will Dubois at a press conference that afternoon.

“It never should have happened, nor should it continue.”

Dubois expressed “mixed feelings” about the decision to give Minister Cansfield ultimate authority to stop or restart the project in the next 30 days.

He expressed concern the Toronto-area MPP would cave to pressure from the city and encouraged people to contact her with their opinions.

In response to the injuction against them, Dubois said they hoped to be off the land by noon Friday.

This case should be a wake-up call that citizens can’t always rely on governments to be good shepherds of the environment, added Shabina Lafleur-Gangji.

“People go through legal matters to take care of things, but I don’t think it should stop there,” Lafleur-Gangji. “I’m not saying we should all do really illegal things... I’m saying that we need to start looking at how much we’re pushing, because there’s so much environmental destruction around us.”

As for the $5 million in damages being claimed by the city, Mayor Farbridge emphasized it was part of the court process to claim damages and that there were no plans to sue the defendants.

"It's part of the process of an injunction to document the impact of what is happening, so part of that impact is obviously financial impact," she explained. "It has not been the dire of council to seek a lawsuit of five million dollars against the protesters, and it's not our intention to pursue an individual lawsuit in that manner."

Asked about the opposition that has come about as the occupation, Farbridge acknowledged there was a "very high level of public scrutiny" on the Hanlon Creek project, but said it was a positive sign that people were involved.

"I always believe that public scrutiny through legitimate means has also improved every development," she said.

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