"Capital Power gets injunction, court ignores consultation law"

SIMCOE, ONT - An energy company that wants to build wind turbines on unceded Six Nations lands near Port Dover has been granted an interim injunction in response to the shutdown of four of its projects two weeks ago.

Justice C. Stephen Glithero granted Capital Power an interim injunction during a hearing at the Simcoe Courthouse yesterday, allowing work to continue on the company's 8,900-acre Port Dover/Nanticoke Wind Project.

What Justice Glithero did not do was more revealing.

He did not order Capital Power to consult with Six Nations or return to the negotiating table, allowing the company to continue to develop on lands Six Nations has an interest in.

Capital Power sought the injunction in response to a Jan. 17 shut down of four Capital Power construction sites, when a caravan of about 35 Six Nations people stopped the projects after the company ignored a cease and desist order issued by the Confederacy Council's Haudenosaunee Development Institute (HDI).

HDI interim director Hazel Hill, Cayuga Chief Blake Bomberry, and HDI archaeological monitor Wayne Hill are all named in the injunction.

Only Bomberry received the notice of injunction and was present in court yesterday.

Aaron Detlor, a lawyer representing the HDI, argued against the injunction, saying Capital Power has not negotiated with the HDI (an arm of the Confederacy) in good faith.

Capital Power and the HDI had been negotiating over the development but those negotiations broke down last summer, said Detlor, when Capital Power refused to budge on its $2.5 million offer to Six Nations over the 20-year lifespan of the project.

Detlor said the offer was not a fair amount, given that Capital Power stands to make over $400 million on the project. The HDI, in return, had asked for compensation in the amount of $20 million over the project's lifetime.

He said the HDI sent Capital Power a letter in September stating their objection to the offer and Capital Power had not responded since.

Detlor also pointed to the provincial government as failing in its obligations to consult with aboriginal groups when it granted Capital Power its Renewable Energy Approval (REA) without consulting with Six Nations first.

The project sits within the Nanfan Treaty area.

Detlor said previous case law has shown that aboriginal groups must be compensated for the use of their lands regardless of whether or not the lands are under claim. He argued although Six Nations has not filed any land claims in the Nanfan Treaty area. The treaty spells out Haudenosaunee rights to "free and undisturbed" hunting on the lands. Detlor said wind turbines prevent free and undisturbed hunting. The Nanfan Treaty area encompasses a swath of land stretching from southern Lake Ontario and covering a significant area of the mid-western United States.

"The emphasis here is on treaty rights," said Detlor. "My client's concern is the process (of negotiations, not money)."

He agreed it was difficult to negotiate with developers when the law spells out that it's the Crown's duty to consult.

"We don't have the Crown, we have a private party," he said. "It's difficult from a Haudenosaunee perspective to look to anybody to uphold the honour of the Crown when the Crown is conspicuously absent."

Capital Power lawyer Christopher Bredt argued that it was Six Nations who walked away from the negotiations and called the HDI's actions "extortion."

"We have made an effort here for good faith negotiations," he said. "We continue to be willing to meet and discuss the project."

He said any other group of people who are not aboriginal would be guilty of extortion in this situation.

"If the individuals were not aboriginal, there clearly would be no issue that the injunction would be granted," he told the court.

He said his clients lost $60,000 a day during the shutdown and that Capital Power contractors felt "threatened" during the shutdown on Jan. 17.

Detlor took exception to Bredt's use of the word "extortion" and the tone of the lawyer's argument, and said his version of the negotiations were not accurate.

"He (Bredt) was pointing to the HDI as not being responsive," said Detlor. "They (the Haudenosaunee) have been prepared to negotiate while Capital Power continues with the project. The refusal of Capital Power to come back to the table is part of the problem."