Bands opt to appeal Point ruling

Duane Hicks

The four First Nations involved in the court case over Pither’s Point Park are appealing a judge’s ruling last week that the Town of Fort Frances can continue to maintain it until either ownership finally is determined through the court case or a further order of the court.
Couchiching Chief Chuck McPherson said this morning that the plaintiffs—Couchiching, Naicatchewenin, Nicickousemenecaning, and Stanjikoming—will appeal the ruling, and that the appropriate parties likely would be notified by the end of today.
“I wasn’t pleased with the initial outcome,” Chief McPherson said. “That’s one of the reasons we agreed to collectively appeal it.
“None of the communities were satisfied with that.”
But Chief McPherson also said he wasn’t surprised with the ruling given judicial decisions historically have not been in favour of First Nations.
“I am disappointed in the tactics the town engaged in,” he remarked. “Nonetheless, it’s their prerogative to do it, I guess.
“We had, in good faith, last year offered them an extension to the [99-year] lease and they, in turn, used that public offer in the courts against us in a negative fashion.
“So I was disappointed in that.
“All we ask is that they sit down with us,” the chief added. “We had said that we would look at the continuation of a lease last year, if there was a fair market value rent paid, and that hasn’t occurred.
“And that’s why we’ve discontinued negotiations with them.
“There was no money crossing, and $35 [a year] just wasn’t going to do it anymore,” he argued.
Chief McPherson said if a fair market value lease was on the table, negotiations could continue. But in his opinion, the town wants the park but wants someone else to pay for it.
“The fact that they have got an application in the courts to have all of the unsold, surrendered land in the Agency One reserve declared theirs, that’s another tactic that I don’t necessarily appreciate,” he noted.
“It’s like leasing a car. Once a lease is done, I have to bring it back. I don’t automatically own it just because I put gas in it, cleaned it, and maintained it.
“But I guess, in respect to First Nations, the philosophy is different—if you lease land, and take care of it, and pay a minimum amount of money for it, I guess you own it at the end.”
As reported in Thursday’s Daily Bulletin, Superior Court Justice John F. McCartney had rendered his decision on the town’s preservation order regarding the park last Tuesday.
The town had brought a motion before Superior Court in Thunder Bay on April 22 to attempt to clarify the use of Pither’s Point Park until the legal questions of its use and ownership finally are answered.
Justice McCartney reserved his decision at the time, which he then delivered last Tuesday.
In a court document outlining his reasons for his decision, Justice McCartney stated the town had succeeded in establishing the prerequisites for interim injunctive relief, in that:
•there is a serious issue to be tried;
•the applicant (the town) would suffer irreparable harm if the injunction is not granted; and
•the balance of convenience favours the granting of the injunction.
Regarding whether there is a serious issue to be tried, Justice McCartney summarized the arguments of the four parties involved, including the town, Ontario, and Canada (the defendants) and the four bands—Couchiching, Naicatchewenin, Nicickousemenecaning, and Stanjikoming First Nations (the plaintiffs).
The town has argued that by virtue of the Order-in-Council of September, 1908, Ontario, which owned the land once the surrender had been complete, transferred authority to grant it to the town for the purpose of a park, and that this was made clear in the Order as well as in correspondence surrounding it.
In point of fact, Ontario complained to Ottawa when it found out it was charging a lease payment since the property was to be “given” to the town free of charge.
So the town argues while the Order-in-Council granting the park to the town still stands, no one but the town is entitled to it.
Ontario argues simply that it gave Canada the authority to establish a park on the surrendered lands, and Canada was at liberty to do this however it chose, and they did it by way of a lease.
Now that the lease it up, says Ontario, the land is merely unsold surrendered land and Canada can deal with it accordingly.
There is no serious issue to try.
Canada argues that all Ontario was doing in the Order-in-Council of September, 1908 was giving a consent to Canada.
There was no intent whatsoever to confer any permanent interest in the land—there was no such promise by Canada, and the town willingly entered into the 99-year lease agreement.
Furthermore, the conveyance, according to Canada, was contrary to the Ontario Public Lands Act at the time.
Further, Canada argues that in a case where there are issues of law or the facts are not substantially in dispute, a higher standard than a “serious issue” must be established by the moving party—that being that the moving party has a strong prima facie case.
The plaintiffs (the four bands) argue there is no issue to be tried since it is highly improbable that the town would be content to be a lessee of land for 100 years, pay its nominal rent every year, and then at the end of the lease be entitled to ownership.
The plaintiffs note the town never requested a patent of the land in question, and also that case law regarding ownership of Indian lands has been changing in favour of Indians since the lease agreement was entered into.
Justice McCartney decided the town’s position “is quite complex,” but neither “frivolous” nor “vexatious,” and thus qualifies as a serious issue.
Regarding irreparable harm, Justice McCartney stated the town has said that the “loss of use of a public park, with all the public uses itemized, which have been developed over 100 years, would constitute irreparable harm.”
On the other hand, the plaintiffs (the four bands) have argued “that the park has been winding down its operations of late, and, in any event, it is merely only treed land and there is no evidence that physical damage will occur if someone else other than the town takes possession.”
Neither Ontario nor Canada set out arguments regarding the irreparable harm component of the test.
To this, Justice McCartney stated: “There is little question that changing the nature of an established recreational municipal park of 100 years standing would create irreparable harm.”
Regarding the balance of convenience favouring the granting of the injunction, Justice McCartney explained that it must be determined who will suffer the greater harm from the granting or refusing of injunctive relief.
The town argues that “the public interest has to be considered here, and that the loss of use of [a] 100-year-old public park by the community, with no evidence that the other parties would be inconvenienced by the granting of an injunction, clearly leaves the town suffering the greater inconvenience.”
The plaintiffs argue “they have attempted, in good faith, to resolve the dispute but to no avail,” while neither Ontario nor Canada presented argument with respect to this part of the test.
“There can be little doubt that the balance of convenience favours the town which represents the public’s interest in maintaining a public park,” stated Justice McCartney.
Justice McCartney concluded that in order to effectively adjudicate on a matter before the courts, the courts must have the ability to maintain the status quo until a final determination can be reached.
Furthermore, this is particularly true where the issue is the preservation of the property which is the very subject matter of the dispute.
“I have little doubt that if after 100 years the status quo of the park in question should change, and possession should be taken out of the control of the town, and it loses its ability to operate as a park as it has done for the last century, such an act would surely compromise the fair, final, and timely determination of the issues of who does or does not have ownership rights to the park,” Justice McCartney concluded.
He ordered that Pither’s Point Park continue to be in the possession of the town, and that the town maintain it, as in the past, as a public park until final determination of the court case or further order of the court.
In a press release issued Thursday, the town stated: “The Town of Fort Frances looks forward to maintaining the Point Park for the ongoing use and enjoyment of all communities and visitors to the area.
“The Town of Fort Frances will continue to pursue, as it has in the past, co-operative solutions outside of the court process.”
“I think it’s good for all people, the town residents as well First Nations,” Mayor Roy Avis said in an interview Thursday.
“The position of the town is we want to maintain it, we want to look after it, and we want to work with the First Nations’ people to make it good for all people in the surrounding area,” he added.