Obstructive Conduct by Aboriginal Groups May be Regulated by Municipal By-Laws

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The decision of the Ontario Court of Appeal in Detlor v. Brantford (City) helpfully addresses the intersection between municipal jurisdiction and constitutional law. In upholding the power of municipalities to pass by-laws which prohibit any person, including Aboriginal person, from interfering with, or obstructing lawful development on private property, the court has sent a strong message that the rule of law must be respected by all citizens.  The Court in large part dismissed an application by a local Aboriginal group to quash the by-laws on the basis that they restricted Charter rights under s. 2(b) (freedom of expression), s. 15 (equality), and trenched on exclusive federal jurisdiction to regulate Indians. The decision has important implications for municipalities and businesses across Ontario that have relations with Aboriginal groups.

Facts:

In the fall of 2007, the traditional governing body of the Haudenosaunee (Iroquois) people, created the appellant, the Haudenosaunee Development Institute (HDI), for the purpose of regulating the development of private property in the City of Brantford (Brantford).  HDI demanded that developers obtain its approval and pay it fees in order to proceed with their projects.  When several developers refused to comply with these demands, HDI and its supporters began a series of measures to stifle development in the city.  They blockaded development sites; they obstructed public rights of ways; and they forced work stoppages by standing or sitting in front of equipment. By the spring of 2008, these measures were occurring almost daily.

In 2008, Brantford passed two by-laws in response to actions taken by the HDI to interfere with development on privately owned land. The two by-laws prohibited unauthorized interference with development and construction on private property, and the imposition of unauthorized fees or other conditions on new development.

Brantford then sought an interlocutory injunction to restrain HDI and its supporters from engaging in the activities prohibited by the by-laws.  HDI applied to have to have the by-laws quashed.  Arrell J. of the Ontario Superior Court of Justice, in the decision City of Brantford v. Montour, granted the interlocutory injunction and dismissed the application to quash the by-laws.  Leave to appeal the interlocutory injunction was denied, but leave to appeal the dismissal to quash the by-laws was allowed.

HDI challenged the constitutionality of the by-laws on the basis that they: a) infringed upon the Haudensosaunee’s freedom of expression under s. 2(b) of the Charter; b) discriminated against the Haudenosaunee on the ground of their ancestry, contrary to s. 15 of the Charter; and, c) trenched upon exclusive federal jurisdiction granted by s. 91(24) of the Constitution Act 1867 to legislate in relation to “Indians, and Lands reserved for the Indians.”

Analysis:

The Ontario Court of Appeal dismissed all three legal arguments.

1.         Minimal and curable violation of section 2(b) of the Charter – Freedom of Expression

While the by-laws limited freedom of expression guaranteed by s. 2(b) of the Charter, the Court of Appeal held that the limits were justified under s. 1 of the Charter as “reasonable limits prescribed by laws as can be demonstrably justified in a free and democratic society”, by satisfying the test established by the Supreme Court of Canada in R. v. Oakes, [1986] 1 S.C.R. 103. The limitations on freedom of expression prescribed by the by-laws were rationally connected to Brantford’s pressing and substantial objective of preventing unlawful disruptions to development.  Moreover, the by-law limitations were proportional to the legislative objective because they impaired freedom of expression “in a reasonably minimal way.”

The Court of Appeal subjected all provisions of the by-laws to careful scrutiny and only struck down minor aspects: the prohibition against erecting signs on or adjacent to designated streets, and the prohibition against ‘inviting’ and ‘requesting’ a fee for development. 

2.         No violation of section 15 of the Charter – Equality Rights

The Court of Appeal rejected the argument that the by-laws discriminated against the Haudenosaunee on the ground of their ancestry, stating:

    ...neither by-law discriminates against the Haudenosaunee either in purpose or effect. Neither by-law prevents the Haudenosaunee from interacting lawfully with developers or from advancing their constitutional interests in a lawful way. The by-laws prohibit tortious and coercive conduct. The Haudenosaunee can hardly claim that they have a constitutional right to engage in this kind of conduct, or that a ban of this kind of conduct somehow discriminates against them. I would not give effect to the appellants' s. 15 claim.

3.         The By-laws did not Trench on Federal Jurisdiction

The Court upheld the by-laws as properly passed under the provisions of the Municipal Act, 2001, and therefore enacted under provincial legislative power in relation to property and civil rights. Had the by-laws singled out the Haudenosaunee people for special treatment, they would have been invalid; but as by-laws of general application applicable to all persons, there was no incursion upon exclusive federal jurisdiction under s. 91(24) of the Constitution Act, 1867

The Court also rejected the argument that the by-laws intruded upon a “core of Indianess” reserved to Parliament. The concept of “core of Indianess” only includes matters that go to the status and rights of Indians as “Indians.” The narrowness of the “core” recognizes that Indians are members of a broader population, and thus, in their day-to-day activities, are subject to provincial and municipal laws of general application.  

Implications:

This decision is important in its endorsement of the power of municipalities to regulate unlawful interference with development.  As stated by the Court of Appeal:

    Brantford has every right to pass legislation to control lawlessness and nuisances on its streets and on private property within its city limits.  The Haudenosaunee, like all other citizens of Brantford, are subject to this by-law.

More broadly, the Court has sent a strong message that the rule of law must be respected by all citizens, including Aboriginal persons.

Although this decision dealt with by-laws that prohibited unlawful behaviour in relation to the development of private properties, there is no reason in principle why its application should be so limited.  Arguably, the analysis provided by the Court of Appeal can be extended to apply with equal force and effect to any reasonably limited by-laws which are passed to prohibit lawlessness and public nuisance.  Such by-laws could be designed to avoid disruption to existing businesses within a municipality, or the economic life of the municipality generally.  As a result, the decision has important implications for municipalities and businesses across Ontario that have relations with Aboriginal groups.