Tuesday, September 23, 2003

Citizens Held-Up for 123 grand

City Demands $123,000 from Expressway Opponents
Hamilton City Council has decided to seek $123,000 in court costs from six citizens who oppose the construction of the Red Hill Creek Expressway. The decision was taken today in Committee of the Whole which authorized the City's lawyers to make a written submission to Superior Court Justice Joseph Henderson.

McMaster professor Jim Quinn, one of the six citizens, called the Council's decision "vindictive" and "an attempt to silence opposition to the expressway and prevent discussion of need and alternatives as they've done since 1985".

The six citizens volunteered to present legal arguments against an application for an injunction made by the City in early August to stop protests at the site of planned construction of the proposed expressway. They were among several hundred people who picketed the site and blocked construction vehicles on August 5, 6 and 7. The protestors believed that the City had not received the permits and approvals required to allow construction to begin. They also pointed out that nesting migratory birds on the site were protected from disturbance by federal law.

After filing the injunction application, the City released letters purporting to show that the three required permits were obtained on July 28, July 30 and August 5. However, they filed a report that migratory birds were still nesting on the site on August 21, thus showing that the protestors had actually saved the City from breaking the federal Migratory Birds Convention Act.

Court evidence also showed that the City still does not have other key approvals for the expressway project, including the authority to re-locate 7.6 kilometres of Red Hill Creek, and a permit to excavate 70,000 tonnes of the toxic Rennie Street dump which lies in the path of the proposed road.

Justice Henderson approved the injunction request in a 23-page decision issued on September 12. Despite this, the City has not started work because the site has been occupied by citizens of the Haundenosaunee (Six Nations) Confederacy. On Friday, the City agreed to begin discussions with the Confederacy about treaty rights and aboriginal burial sites in the valley.

City officials claim they ran up $235,000 in legal expenses in the injunction. The City was represented by the Toronto law firm of Gowling Lafleur Henderson which fielded a team of seven lawyers in the day and a half of court hearings in early September. Court cost awards only allow for reasonable expenses, and make it impossible to recover excessive legal fees.

The six citizens represented themselves and spent less than $500. They each stepped forward voluntarily to argue that the injunction.

For further information:

Don McLean
Chair, Friends of Red Hill Valley

Dr. Jim Quinn

Friday, September 12, 2003

injunction function and first nations solidarity

Expressway opponents vow support for Aboriginal rights

Hamilton, Ont. -- Opponents of the Red Hill Creek Expressway expressed support today for members of the Six Nations Confederacy who are continuing to occupy lands in Hamilton's Red Hill Valley, despite a court injunction granted to the City of Hamilton.

"We agree with the Haudenonsaunee people that this decision has no bearing on their rights," said Jim Quinn, a spokesperson for the ShowStoppers Union, a coalition of individuals and groups opposed to the expressway. "We will try to support their struggle in any way we can."

The ShowStoppers expressed disappointment at the decision of Superior Court Judge Joseph Henderson in granting an injunction that allows work to begin on a bridge-ramp at the end of Greenhill Avenue in east end Hamilton.

"We respect the decision of the court but we will continue to oppose the expressway," Quinn said. "There has been a huge outpouring of support since the beginning of August to keep the Red Hill Valley expressway-free."

ShowStopper pickets successfully prevented the beginning of work at the Greenhill Avenue site in early August by Dufferin Construction. The picketing was peaceful and no arrests were made, in spite of police monitoring of the protest.

On August 11, the city applied to the Ontario Superior Court for an injunction to halt the picketing and allow construction to begin. Six individuals acted as defendants in the case and represented themselves in court hearings on September 5 and 8 against a high-powered team of seven lawyers hired by the City.

Justice Henderson's decision, released earlier today, can be read here (pdf).

Wednesday, September 3, 2003

Birds By Law

Protestors Prevented City of Hamilton from Breaking Federal Law

City study confirms that construction site occupied by nesting migratory birds

A City of Hamilton study has confirmed that the citizens who successfully stopped the City from beginning construction of the proposed $220 million Red Hill Creek Expressway, also prevented the City from violating the federal Migratory Birds Convention Act.
Citizens set up picket lines on August 5 near Greenhill Avenue in east Hamilton, and blocked access to a site slated for construction of part of the controversial expressway. They argued that the City did not have a legal right to begin the construction work, partly because of the presence of nesting migratory birds in the proposed construction site, first reported in an August 4 media release by Friends of Red Hill Valley.
The City is now pursing an injunction to prevent protests at the site. The next court appearance is scheduled for 10 am on Friday, September 5 in the John Sopinka Courthouse at 45 Main Street East in Hamilton.
As part of its court affidavits, the City has released a study conducted by its own consultants which confirms that nesting migratory birds were still on the construction site as late as August 21. The study was conducted by Karl Konze of Dougan and Associates. He says the nests he found may be active until this week and recommends that a further bird survey be carried out prior to any attempt to start construction. A continued 'nest-in' by the birds may result in further postponement of construction.
It is clear, however, that no study was conducted by the City prior to its attempt to start construction in early August. If this construction had been allowed to proceed, the City would have violated the federal Migratory Birds Convention Act which makes it an offence to "disturb, destroy or take a nest, egg, nest shelter, eider duck shelter or duck box of a migratory bird".
The City is responsible for checking details such as these before rushing to start construction work. "In their rush to pave the valley, the City continues to show its lack of care and concern for the environment and the law," said Friends of Red Hill chair Don McLean. "Never mind that if the city gets their road these birds will be homeless next year when they return to find 44,000 trees cut down to make way for pavement."
Far from thanking the protestors from preventing the City from violating federal law, Hamilton has threatened protesters with criminal charges and civil lawsuits including seizing people's homes to cover court costs and any delays to construction.
Mr. Konze's court affidivat also includes a "Red Hill Valley Project - Nesting Bird Survey and Due Diligence Protocol" dated "August 2003" that requires bird surveys to be conducted within four days of the proposed start of construction. It appears this protocol was developed AFTER the nesting birds were pointed out by Friends of Red Hill Valley, and is another positive result of the protestors' actions in stopping the construction work.
An electronic copy of Mr. Konze's affidavit is available on request.

contact Friends of Red Hill Valley for more information