Aboriginal claims – another layer of complexity and risk for the construction industry 


July 2011

Construction and Aboriginal Law Bulletin
also published in TerraLex Connections enewsletter

Aboriginal claims have become a crucial consideration to developers and others in the construction industry seeking to manage risk effectively and deliver successful development projects. In many cases where aboriginal claims are asserted, unexpected delays, litigation, project failure, and even violent confrontations can be the result. These circumstances were at play in Brantford, Ontario, where certain First Nation individuals and a First Nation organization called the Haudenosaunee Development Institute ("HDI") demanded that developers pay fees, obtain permits from the HDI, and satisfy various other conditions in relation to numerous development sites across Brantford.1 When developers refused, blockades were erected, and delays and litigation ensued.
the facts

The HDI was created by the unelected Confederacy Chiefs of a First Nation band proximate to Brantford called Six Nations of the Grand River, whose members are also known as the Haudenosaunee (often translated as "People of the Longhouse"). The Confederacy Chiefs and the HDI believe that all lands within the "Haldimand Tract" – lands that run six miles deep on either side of the Grand River from its source to its mouth and include Brantford – belong to the Haudenosaunee people by virtue of the Haldimand Treaty of 1784. The HDI and certain First Nation individuals believe that these lands are independent of Canada, Ontario, and Brantford. The stated purpose of the HDI is to deal with developers "expeditiously and effectively" and to "regulate development" in the Haldimand Tract.
The development projects at issue were of "significant economic importance" to Brantford. They included a hotel, manufacturing facility, retail outlets, and a residential subdivision. The developers had obtained all the approvals and permits required by Ontario and Brantford. When the developers refused to accede to the HDI's demands for payment of development fees and the satisfaction of various other conditions, certain First Nation individuals and unidentified protesters blockaded entry to the development sites, threatened workers, and damaged property, thereby bringing construction at the various sites to a halt.

The City of Brantford responded by passing by-laws prohibiting any interference with construction on the development sites and any unauthorized group from demanding fees or tariffs from developers as a condition of development in Brantford. The City of Brantford also obtained an interim injunction against the protesters, but the blockades and confrontations continued.

The City accordingly brought an action against certain First Nation individuals and the HDI for breach of the by-laws, civil conspiracy, and public nuisance. On application, the City also sought an interlocutory injunction against them to cease and desist from interfering with access to the development sites and from demanding the satisfaction of various conditions as a prerequisite to development in Brantford. The First Nation individuals and the HDI, in turn, sought a declaration that the by-laws were invalid.

the Court's decision on the application

In granting the interlocutory injunction, Justice Arrell found that,

  • the City of Brantford's allegations of breach of the by-laws, civil conspiracy, and public nuisance had merit and were therefore serious issues to be tried;
  • the City of Brantford would suffer irreparable harm should the injunction not be granted as Brantford's economy, reputation, and the rule of law were all threatened by the protesters' actions; and
  • the balance of convenience favoured the City of Brantford over the First Nation individuals and the HDI.

In assessing this last element, the Court found that the claim for title of the First Nation individuals and the HDI to the subject lands in Brantford was "exceedingly weak" and that the delay of over 150 years in asserting any claim to title barred the return of the lands to the Haudenosaunee. Six Nations of the Grand River agreed to surrender for sale the subject lands and they were indeed sold as far back as the 1840s. The Court also found that if the First Nation individuals and HDI were owed any duty to consult, such a duty was satisfied as they had been provided notice of the subject developments, had an opportunity to respond to such notices, and received further consultation through the litigation process itself. The Court therefore concluded that the potential harm to the City of Brantford that would result from the cessation of construction greatly outweighed any potential harm to the First Nation individuals and the HDI.

In dismissing the claims of the First Nation individuals and the HDI that the by-laws were invalid, the Court rejected their arguments that,

  • the by-laws were passed in breach of the Crown's duty to consult aboriginal peoples; 
  • the subject matter of the by-laws was outside the City of Brantford's jurisdiction as it respected the federal matter of "Indians and Indian land"; 
  • the by-laws violated Charter rights of the First Nation individuals and the HDI, including freedoms of expression, assembly, and association; and 
  • the by-laws were enacted in bad faith as the Haudenosaunee were specifically targeted without receiving notice of their enactment.

Instead, the Court found that the Haudenosaunee were not specifically targeted as the by-laws applied equally to all people and that any duty to consult owed had been satisfied. There was no evidence that the by-laws were enacted in bad faith, nor had Charter rights been infringed. The by-laws prohibited the obstruction of public rights of way, the intimidation of workers, the creation of nuisances, trespassing, and damaging private property – they did not offend the Charter.


While the City of Brantford was ultimately successful, the case of Brantford (City) v Montour serves as an example of the delays, inconvenience and legal costs that developers, municipalities, and others concerned with construction can encounter where aboriginal claims are asserted. Perhaps equally interesting is what Justice Arrell's decision fails to address. The Court avoided consideration of the significant issue of whether municipalities owe aboriginal peoples a duty to consult at all. Instead, the issue was sidestepped when the court found that, if any such duty to consult is owed, it was satisfied. Given that municipalities are creatures of provincial statute, the question remains whether the duty to consult will be found to apply to projects sanctioned, approved or commissioned by municipalities. In avoiding the overall consultation question, the Court also avoided discussion of whether consultation obligations are owed to First Nation individuals or to the HDI – neither of which constitute an aboriginal band. Regardless of whether and how these legal issues are resolved, the case serves as a reminder that, even when an aboriginal claim to land involved in a project is "exceedingly weak," developers need to bear in mind the challenges that such claims may pose to the cost and timing of construction projects and manage risk accordingly.

by Martin G. Masse, Jason J. Annibale and Caroline Samara (summer student)

a cautionary note

The foregoing provides only an overview and does not constitute legal advice. Readers are cautioned against making any decisions based on this material alone. Rather, specific legal advice should be obtained.

© McMillan LLP 2011