Hamilton seeks urgent court order over Sewergate cleanup dispute with Indigenous group
The city is seeking an urgent court order to force Ontario to intervene in an increasingly contentious Chedoke Creek cleanup dispute with an Indigenous group.
Hamilton lawyers appeared in court Friday to ask for an expedited hearing to consider an application to compel Environment Minister David Piccini to issue an access order" to ensure unimpeded dredging of the sewage spill-ravaged creek that feeds Cootes Paradise.
The matter is tentatively slated to be heard virtually by a judicial panel June 13 - just days before work must restart if the city hopes to meet a provincial cleanup deadline this fall.
The proposed access order is aimed at the Haudenosaunee Development Institute (HDI), an Indigenous group that argues Hamilton must seek consent from hereditary Six Nations chiefs before going ahead with the project.
The city's application argues HDI members prevented dredging last year by repeatedly visiting the creek and creating a safety hazard." The group is expected to continue to impede access" this summer, it says.
The court application was news to HDI spokesperson Aaron Detlor, who said in an interview the group was not notified about either the Friday case conference or the existence of the application that names the institute.
I'm tremendously disappointed, but not surprised," said Detlor. It seems to me contrary to the honour of the Crown to try to get an order to limit treaty rights and not tell the people who hold the rights."
Detlor said he would be reaching out to the city now that he has learned of the court hearing, noting he is also still awaiting a response to a request to meet with Hamilton's new mayor and council.
Earlier this year, Detlor wouldn't rule out a resumption of site visits this year to exercise treaty rights" by Haudenosaunee group members. But Detlor said Friday the HDI remains open to the idea of participating in environmental monitoring for the dredging - given time and resources to examine the details.
What the city wants is for (us) to just sit on the site and watch them undertake work ... when we don't know whether it is a real cleanup or not."
If a panel of judges declines to order action by the minister, the city is asking in the alternative for the courts to quash" the provincial cleanup deadline of Oct. 31 - or even the ordered work altogether.
The latest legal manoeuvre comes just a month after Mayor Andrea Horwath publicly thanked Piccini for working together on a co-operative timeline" to extend a cleanup deadline the city had otherwise vowed to appeal.
Both the mayor and Piccini's office declined to comment on the pending court hearing, but in an emailed statement Horwath said she remains committed to getting the cleanup done. The city will do everything in its power to make that happen," she said.
Ontario originally ordered the creek cleanup after The Spec revealed in 2019 that the city had kept secret the extent of a four-year, 24-billion-litre sewage spill. A $6-million dredging project was planned for 2021, but then delayed until 2022.
Work ground to a halt again last year after the HDI called on the city to seek consent for the project and pay close to $400,000 for environmental monitoring and capacity funding." The city has called the idea of seeking formal consent" a non-starter with serious precedent-setting legal implications.
The dredging contractor eventually refused to continue work, citing HDI members who paddled into the creek, tethered boats to dredging equipment, and set up tents and campfires in the work zone.
Correspondence released by the city earlier this year shows Hamilton police suggested last year that the city apply for an emergency court injunction to remove protesters if necessary from the Chedoke Creek work site.
In a report to council last month, city staff said they rejected that suggestion as a remedy of last resort" that would hurt relationships with Indigenous community members.
The city opted instead to ask the province for a minister's access order under the Environmental Protection Act, reasoning police could enforce that order instead.
The province declined the request as not appropriate" - setting the stage for the latest court showdown.
Flamborough-Glanbrook Tory MPP Donna Skelly called the request for provincial intervention an unnecessary delay" of a cleanup residents have waited five years to see.
If there is an access issue at the site, (the city) can hire security, they can call police," she said in an interview. They have the tools ... They don't need us."
Matthew Van Dongen is a transportation and environment reporter at The Spectator. mvandongen@thespec.com