A Superior Court judge today acceded to Simcoe County’s request for a two-week adjournment of a hearing into two rival injunction applications.
Argument on whether to halt construction of Dump Site 41 on the grounds it is illegal because it was never authorized by bylaw, or whether on the other hand to impose a permanent ban on protestors’ attempts to stop it, will be heard August 13-14 at the Barrie courthouse.
Justice Peter Lauwers extended a temporary injunction first issued July 22 to prohibit protestors from stopping or delaying construction.
He discounted argument from lawyer Peter Rosenthal, representing Vicki Monague of Beausoleil First Nation, that the order is too sweeping an infringement of his client’s freedom of speech rights – an infringement she has not yet had an opportunity to argue against.
The July 22 order is open to broad interpretation, Rosenthal said, asking, for instance, whether site opponents are prohibited from handing out leaflets to drivers of vehicles entering the site, or from engaging in political action at Simcoe County headquarters in Midhurst.
“My client is part of a movement that’s been formed to delay the construction,” Rosenthal pointed out.
He added that the County does not come to the court with “clean hands,” because it has delayed and obstructed the work of the Community Monitoring Committee, mandated by a review board as a condition of the site’s Certificate of Approval from the Ontario government.
Rosenthal noted that the County has been fighting for two years against production of the calculations used in a computer model that CMC members need in order to provide appropriate review of the Dump Site 41 project.
Acting for the County, lawyer Chris Whelan argued that no irreparable harm could result from allowing construction to proceed over the next two weeks, pending full argument of the issues.
Whelan said the injunction was being flouted – not by dairy farmer Anne Ritchie-Nahuis and Monague, the two women facing a damage claim of $160,000 or more from Simcoe County – but by others.
He described a July 23 incident in which County official Rob McCullough attempted to gain access to the site and was turned back by blockaders “flouting the law.” In fact, McCullough was faced by one Anishinabe man, who was singing and drumming in front of the gate.
Sean Dewart, acting for Ritchie-Nahuis, did not oppose the interim injunction, but argued against any adjournment of an injunction application filed on her behalf for a halt to construction.
Dewart said the issue depends entirely on whether or not the County is in compliance with the Municipal Act.
“I’m not seeking an adjournment, I’m ready to go,” he said, adding that the taxpayers of Simcoe County are out of pocket if county officials are allowed to proceed with unauthorized construction. There is no way of recovering those tax dollars, Dewart said, “so it is absolutely a case of irreparable harm.”
However, Lauwers chose to stick with the order he issued a week ago.
“The wording was carefully tailored to balance competing rights – those of private property on the one hand, and expressive Charter rights on the other hand,” Lauwers said in reading his decision in court this afternoon.
“The object was to prevent delay and physical interference with the county’s operations,” he added.
In other developments yesterday:
-The court was informed that, in addition to Beausoleil First Nation, the Kawartha Nishnawbe First Nation on the east side of Lake Simcoe considers this area to be traditional territory for the harvesting of fish, wildlife and plants. Neither First Nation has been consulted.
-A busload of students from Ryerson University demonstrated in opposition to Dump Site 41 outside the courthouse, and visited the protest camp. “Students are making our voices heard on this issue,” said Chris McNeil. “We know it’s important to save what little clean water we have left.”
-In an affidavit submitted to the court, McCullough lists 11 names, or partial names, of people he says remain at the site. The list – likely culled from police surveillance reports – is far from inclusive, and does not appear to distinguish between people who may have decided to block the gates and others who are passing, observing, or simply asserting their expressive Charter rights.

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