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Manitoba’s top court has ordered the legal battle between protesters and a local developer be brought back to court on an urgent basis.

A request for an injunction to remove protesters from the Parker Lands development site will now be heard on Sept. 14 instead of Nov. 2, after a panel of Court of Appeal judges decided Wednesday afternoon that the request was indeed urgent and should be argued in court as soon as possible.

“We are satisfied that the cost of delay is real,” Chief Justice Richard Chartier said as he delivered the panel’s oral reasons for decision Wednesday afternoon.

Court of Queen’s Bench Justice Herbert Rempel had previously decided the injunction request wasn’t urgent because there’s no “irreparable harm” to the corporation. Rempel said he had no evidence that the protesters wouldn’t be able to pay damages to the property owner if they were required to do so. But the appeal court overturned that decision Wednesday after lawyers for the property owner, developer Andrew Marquess and his firm Gem Equities, convinced the top court Rempel was wrong.

The appeal court’s decision will speed up the process, but a judge will still have to decide whether to grant an injunction, which would force protesters off the property. Protesters have been camped out on the Fort Garry property since mid-July, halting clear cutting of trees with their Rooster Town blockade, named for a Metis community that was once located near the site. They say they are standing up for Indigenous land rights. Marquess, as the property owner, has taken legal action to remove the protesters from the industrial property near the intersection of Taylor Avenue and Waverley Street. They say no Indigenous group or political leader has raised concerns about the ownership of the land. His lawyers say police have been told not to interfere with the protesters’ camp.

The case raises “serious issues involving property rights,” Chartier said, as the panel of judges called attention to police inaction.

“There is evidence, albeit hearsay at this point, that the police were ordered by the executive to take no steps to remove the defendants from the property unless ordered by a court,” Chartier said. “If there is any credence to this, we find it alarming because when police are engaged in the enforcement of the law, they are to act independently.”

In a sworn affidavit filed in court, Marquess says a police officer told him during a phone conversation on July 15 — a day after the protesters set up camp — that “the Chief of Police had been ordered by ‘the executive’ to take no steps to remove the trespassers.” There is no clarification on who or what “the executive” refers to. The Winnipeg Police Service did not immediately respond to a request for comment Wednesday.

Appeal Court Justice Alan MacInnes commented during the hearing that “this whole process, compared to normal, is backwards.” He said, typically, protesters would be removed from private property and then they could apply for an injunction to halt development on the property.

One of the protesters who appeared in court to speak against the urgent need for an injunction hearing said it’s her understanding police can’t act on civil matters.

“If someone was on your front lawn saying, ‘I’m occupying your front lawn,’ that would be a different story. This is a property that is being clear cut,” said Nancy Thomas, who described herself as a social justice activist. She said the protesters want to ask the court to review the initial land transfer on the property and halt any further development of the land.

“We’re feeling pretty confident because a lot was done wrong with the land transfer and we’re hoping to have the court review that,” she said.

Marquess’s legal team has said ownership of the land is not contested and has never been raised as a concern by any Indigenous group or political leader.

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Lawyer Kevin Toyne is representing Marquess and Gem Equities. He said the appeal court’s decision is “important and significant” because it gives his clients their day in court much more quickly. He said the corporation can’t estimate its financial losses from delaying clearcutting on the land as it was being prepared for future development.

Toyne said “it’s entirely unclear to us” where the direction came from instructing police not to interfere with the protests.

“The practical implications of that, though, are that the police have allowed this to go on for a month and a half now,” he said, saying his clients hope a court order to remove the “illegal protesters” after the Sept. 14 hearing.

katie.may@freepress.mb.ca

Twitter: @thatkatiemay

Katie May
Reporter

Katie May is a general-assignment reporter for the Free Press.

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