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article imageHanlon Creek court decision hanging in the balance Special

By Stephanie Dearing     Aug 11, 2009 in Environment
Guelph, ON - The City of Guelph's injunction seeking to remove the protesters from the lands destined to become the Hanlon Creek Business Park was heard yesterday in Guelph's Superior Court of Ontario.
When court ended yesterday just after 4 pm, the 100 or so supporters who had attended the hearing were in an upbeat mood. Speaking to a gathering of about 100 people at a rally organized by the eco-defenders in front of Guelph's City Hall yesterday evening, Matthew Soltys, a defendant fighting the City, said that the outcome of yesterdays' hearing was mixed. "We did win in court today, which leads us to believe we could win," Soltys said, noting that two Superior Court Judges had authorized the stay of the defendants on the construction site. "When we occupied the site on July 27th, we thought we that we would be removed within three hours. But here we are, it is day fifteen and we are still going strong. It is really amazing."Soltys told the crowd, who cheered and clapped in response.
After providing his update, Soltys said, “I don’t know what to do now. We thought that the City would be granted the injunction, so we organized this rally for that. We didn’t expect this outcome.” More cheers and clapping erupted from the crowd.
The decision of the judge at the end of yesterday's hearing took everyone by surprise. Not only the protesters, but also their supporters thought that the City would win its bid to have the protesters removed from the site. However, Justice Gray said that he needed time to consider the arguments and make his decision, which will be delivered in writing to the parties involved by Friday August 14th at the latest.
Outside the courthouse
Protesters and supporters waiting for court to begin.
Stephanie Dearing
It was a long day in court yesterday, with the proceedings at times causing smiles, but mostly causing people to fret about the possible outcome. There were very many times when it seemed things were not going well for the defendants, but there were smiles from supporters when it seemed that things were not going well for the City either. There wasn't anyone in attendance who felt the judge was not impartial. At the end of the proceedings, it seemed as if everyone was holding their breath in anticipation of the Judge's response, the room was so quiet with everyone watching Justice Gray as he made notes.
The hearing was a quietly dignified drama that took a few unexpected turns. In the first twist of expectations, we learned early in the hearing that the defendants had filed an injunction against the City on August 7th. This injunction, we later learned, is a bid to protect the Jefferson Salamander, believed to possibly live on or near the construction site. The defence was asking that construction on the creek be halted until a plan to protect the salamander was worked out amongst the City, the Ministry of Natural Resources (MNR), and a leading authority on the endangered salamander, Dr. James Bogart.
In a second twist, there was an argument over whether or not to hear a witness for the defendants, Mr. Ian Hagman, the Guelph District Manager of the Ministry of Natural Resources (MNR). The City argued vigorously against hearing from the witness, and the defence conceded that it did not need to call Hagman, as it was up to the City to prove that it was not causing irreparable harm to the site and the Jefferson Salamander. The City stunned everyone when it suddenly called Hagman to testify as a witness for the City.
Hagman took the stand and testified that the MNR did not support the construction work on the creek, and had told the City the same. However, because the salamander had not yet been found on the property, the City could legally proceed with the construction. This testimony was the source of brief confusion, as the City maintained that the MNR could stop the construction if the Ministry felt the City was in violation of the Endangered Species Act. The defendants argued that the MNR could not take steps to protect the salamander's habitat, due to a legislative glitch, and so it was up to citizens to take action. The defence argued that it is better to protect the habitat now, rather than destroy the habitat, then look back in regret for not having acted to protect the lands.
During the lunch break, Hagman explained to me the dual nature of the Ministry's problems in enforcing the species at risk legislation. The first problem for the Ministry is that the location of the Jefferson Salamander has not yet been pinned down. It is a species that is difficult to locate, he said, and the discovery of the hybrid salamander in the area does indicate that the Jefferson Salamander is somewhere nearby. But, without knowing precisely where the salamander is, the Ministry can't protect the habitat. The Ministry can only protect the known habitat, not a presumed habitat. The second problem for the Ministry is that draft legislation that protects habitat for the Jefferson Salamander has not yet been brought into force. At this point, lacking evidence that the construction has directly harmed a Jefferson Salamander, there is nothing the Ministry can do besides advise the City of the law, and warn the City ath charges could result from the harassment, harm or death caused by the construction, should this prove to be the case. Because the exact whereabouts of the salamander is unknown, the Ministry is advising the City to thoroughly look for the salamander.
The City’s case was fairly straightforward. The city owns the land and the protesters are trespassing. The City is developing the property responsibly with all approvals and permits in place. As anticipated, the City pushed to have the protesters off the site no later than August 11th.
In his concluding arguments, Gillespie said the City was asking the judge to choose between two different animal species – the fish who live in the cold water stream and the Jefferson Salamander. Both species need to be protected, he stressed.
During the afternoon's proceedings, a small group of First Nations people entered the courtroom, one man wearing an elaborate feathered headdress. They quietly presented the protesters with a letter, and left shortly after. At the evening rally, the protesters revealed that the men were representatives from the Six Nations of the Grand River, providing them with a letter of support. One protester read the letter aloud to supporters. The letter concluded with a directive to the City of Guelph to “cease and desist” the development of the property, citing a need to protect environmental resources such as wetlands.
After the proceedings were adjourned, supporters and protesters lingered outside the court. One supporter said the judges’ decision was “A wonderful decision. The judge is impartial and he is not being rail-roaded by either side.” Quite a few of the supporters and protesters came away from the hearing with a sense of hope, feeling that the judge will grant the surprise injunction filed by the protesters, moving to protect the wetland.
After Court
After court adjourned for the day, protesters and supporters lingered to talk about the events of the day.
Stephanie Dearing
One protester said that no matter what the outcome of yesterday’s hearing, this is only one phase of the development, and there still are a number of outstanding environmental issues to be addressed in the future, adding that the protesters are committed to protecting the environmental integrity of the property.
The City said yesterday that it planned to have all infrastructure (telephone, water, gas, hydro) in place on the site by the spring of 2010, and this work is also being delayed by the protest.
The Rally
Supporters and protesters at the rally organized for August 10 at 6 pm.
Stephanie Dearing
More about Hanlon creek business, Jefferson salamander, Old growth forest, Guelph
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