Dumping halt still in force 

After the Superior Court of Quebec granted a 10-day emergency injunction earlier this month to stop illegal dumping on the Lake of Two Mountains, a follow-up hearing last Friday resulted in a three-month delay, during which a safeguard order will apply.

The extra time will give defence lawyer François Gottlieb, representing Joshua Smith-Gabriel, 60 days to examine whether to launch a jurisdictional objection based on the Kanesatake Interim Land Base Governance Act. He had previously raised concerns about Quebec bringing the case rather than the Mohawk Council of Kanesatake (MCK), but said he was not sure whether this argument holds water without further research.

He has secured a meeting with an expert, he said last Friday, who will help guide him in deciding whether to file a notice under article 76 of the Code of Civil Procedure protesting Quebec’s involvement.

“There are a number of aspects which arise and which are not reflected, necessarily, in the jurisprudence,” said Gottlieb, adding that it’s not clear whether provincial law should apply.

“We are still in the process of determining the ambit of that debate. It’s not a simple question. It’s a bit complex,” he said.

This notice is due by December 20, the judge ruled. The Attorney General of Quebec would then have until January 31 to respond to the notice.

Gottlieb argued that this constitutional question should be settled before focusing on the interlocutory injunction, saying this could prove an unnecessary expense if it were decided the Attorney General of Quebec had no right to file in the first place.

The parties were also ordered to agree to a timetable by February 11. This timeline would include consideration of the interlocutory injunction, which would put in place the order to cease dumping and other unsanctioned work on the Lake of Two Mountains until the question of a permanent injunction is decided.

Gottlieb was the only defence lawyer present in the courtroom at the October 18 hearing, but Sonya Gagnier of Native Para-Judicial Services of Quebec, who was asked by many of the defendants to speak for them, reiterated at the outset of the hearing that the defendants were having trouble obtaining legal representation.

However, Gagnier said the group of defendants was meeting with legal counsel on October 28 on a pro bono basis, meaning the lawyer will be donating their time. Gagnier has said many of the defendants are elderly and don’t have the means to pay for legal fees.

“He’s going to guide us,” said Gagnier. The judge said she would take this timeline into consideration when issuing a delay.

The lawyer representing the Mohawk Council of Kanesatake (MCK), Wade MacAulay of Dionne Schulze, attended virtually. He spoke only briefly, leaving the door open for an MCK objection down the line.

“I’m waiting for instructions from my clients on the position the Council wishes to take in response to the application on the interlocutory injunction,” he said. “It’s possible they’re reserving the right to contest any of the questions that it might raise, including jurisdictional questions.”

However, he did say that the MCK would abide by any deadlines set by the judge.

At the previous hearing, MacAulay said the MCK had no desire to block the emergency order putting an immediate, temporary end to dumping on the Lake of Two Mountains.

At that hearing, MCK grand chief Victor Bonspille voiced his opposition to Dionne Schulze, the majority of MCK chiefs, and the emergency injunction to stop dumping, a position he attributed to jurisdictional grounds. He did not disclose his connection – revealed by The Eastern Door later that week – to one of the lots allegedly involved in illegal dumping; one third of one of the lots where contaminated soil was found is currently registered to Bonspille’s late mother, Myrtle Bonspille nee Jacobs, who died in 2014.

Golden Star cannabis dispensary now stands on the lot.

“I won’t speak on behalf of Council,” said MCK chief Brant Etienne, “but I think we all agree it’s not right that Victor involved himself in something in which it’s very plausible he has a financial interest or vested interest in it, especially trying to stop the whole thing.”

Etienne said the jurisdictional concerns expressed by Bonspille contradict Council’s official position that until Kanesatake laws are enacted on the environment, provincial and federal environmental laws are applicable on the territory.

“They’re not doing anything that we think violates our jurisdiction in any negative way. Dealing with the dumping and everything like that is in Kanesatake’s interests,” said Etienne, adding that he’s unsure why the federal government is not involved at this time and that it’s necessary to clarify some aspects before taking a definitive legal position.

Following the establishment of a timeline agreed upon by the parties, a case management conference will take place on February 12.

At that time, Superior Court judge Danielle Turcotte could reissue the safeguard order for an appropriate period, she said, if she deems it necessary.

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Note: A previous version of this article referred to Superior Court judge Carole Therrien as the presiding judge; in fact, Superior Court judge Danielle Turcotte is managing the file.