Thursday, August 21, 2003


On Red Hill

A quarter-century scrap over controversial expressway opens a legal hornet's nest

By JOHN BACHER, NOW Magazine, Thursday, August 21, 2003

Hamilton ecologists have re moved their banners and their protest tents from the golden trefoil-dappled meadow at the foot of Greenhill Avenue. Now nothing is left but the rustle of the tall grasses. But after a quarter-century contest over the proposed Red Hill expressway, this silence will clearly be temporary. Last Friday (August 15) an agreement was reached in court whereby environmentalists will leave the site in exchange for a delay in construction of the much-disputed highway that is, until September 3, when court proceedings begin on a city of Hamilton bid to remove anyone blocking construction.

The question is, will the city be able to steamroll over protests from an astounding number of constituencies to legally proceed? The injunction move certainly has an air of desperation about it. The city watched helplessly last week as protest campers stopped construction trucks from beginning a feeder road.

And municipal authorities must know what a legal hornet's nest their bid is sure to stir up, including debates over the Migratory Birds Convention Act, the Fisheries Act, the Planning Act and the Niagara Escarpment Act. Not to mention a 300-year-old treaty between the Iroquois and the British Crown, called a Deed of Trust, which may fundamentally throw into question land tenures for all of southern Ontario.

Indeed, the most sweeping objections in Friday's courtroom drama came from lawyer Paul Williams, representing the Iroquois Confederacy at Six Nations near Brantford. The Red Hill Valley has 22 identified archaeological sites, including an 11,000-year-old site and a native village whose partial excavation has generated over 56,000 artifacts.

It was Williams's treaty claims that shook up the proceedings. Referring to the 1701 treaty, he said it gave the British the obligation to act as an agent of the Iroquois with respect to an area of land reserved for them, "an area which includes southern Ontario and was known as the Beaver Hunting Ground.''

To this, Superior Court Justice David Crane in some degree of shock responded, "Are you saying the city of Hamilton is a hunting ground?"

Answered Williams, "Although our people have not hunted in the Red Hill Valley for many years, it is viewed by our people as a hunting ground, an area where we can gather the fruits of nature. Our role here is as protector of the valley.''

This explains why in April the Confederacy ordered all digging in the valley to cease and then posted no-trespassing signs, making it clear that these were not directed at hikers. Though they denied a permit to the city of Hamilton, the Confederacy gave one to campers protesting the construction. These permits pledged those who entered to abide by the Iroquois Great Law of Peace and to refrain from "violence, verbal and physical, towards any person'' and to "not damage property.''

So now the city is facing the combined opposition of bird watchers, eco activists and a prestigious traditional First Nation government. And while the Friends of Red Hill Valley folk were party to the vacating deal, Six Nations traditionalists who don't recognize the Canadian court system are maintaining their own parallel camp in the black walnut and oak forest that guards the slope of the Red Hill Creek's valley. Deep in these woods, near the centre of the designated construction site, they have built what they call a "round house," an arbour protecting what they say is a sacred fire.

Nature lovers can only hope it keeps on burning.

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