Douglas Cardinal appeals decision to allow Zibi development

Architect Douglas Cardinal continued his fight against Windmill’s waterfront Zibi development on Wednesday at the Ottawa courthouse, asking a judge to reconsider his plea to block construction.

In August 2015, Cardinal and four other appellants asked the Ontario Municipal Board to block the development on the grounds that the Chaudière and Albert Islands are sacred to the Algonquin people.

OMB chair Richard Makuch dismissed the argument in November and said Windmill had taken due diligence in consulting indigenous groups.

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On Wednesday lawyer Michael Swinwood argued that the decision was unfair and asked Ottawa judge Charles Hackland to consider a request for a new OMB hearing.

The result was more than seven hours of technical legalese as the court tried to determine whether Mr. Makuch had made any procedural errors in his ruling that would allow for a new hearing.

Mr. Swinwood argued that Makuch ignored the argument that the development threatened the Charter rights of the Algonquin appellants. He said the OMB hearing never allowed for a discussion of the islands as a designated “sacred site” related to rights to freedom of religion.

“How does any member of the OMB know anything about the laws, traditions and customs of the native people if he silences them?” Mr. Swinwood asked the court. “The idea that this was properly dealt with is erroneous.”

Lawyers representing the City of Ottawa and Windmill defended the ruling, arguing that such broad constitutional questions couldn’t be considered by the OMB but belong in a different court.

“The appellants are seeking relief, which they are entitled to seek, but they’re not in front of this court. They’re in front of a tribunal that cannot give them what they seek,” said city lawyer Ronald Caza.

City lawyer Katie Black emphasized that most of Windmill’s holdings are private land and argued that the OMB can’t declare the land sacred. She said questions around indigenous rights to land often take decades to resolve.

Mr. Hackland said his final decision will be released later in the week. It’s not the first time he’s ruled on a case involving Ottawa development politics. In 2011, Mr. Hackland dismissed a legal challenge from a group opposed to the City of Ottawa’s plans to team up with the private sector to redevelop Lansdowne Park.

“There’s no question that this is an important matter. I’ll give you a decision as soon as I can,” he said.

Windmill cannot begin construction until the appeals process is finished.

The case is a motion for leave to appeal, meaning it would not automatically grant a new OMB hearing, but would give permission for a new hearing to be considered.

Mr. Cardinal said if the judge did not allow the appeal he wants to continue the fight to the Supreme Court.

A National Film Board filming crew who are following Mr. Cardinal and his vision for the islands for a documentary was denied access to the courtroom but remained outside the courthouse during the day.

Opposition to the project is not universal among Algonquin groups.

Pikwàkanagàn Chief Kirby Whiteduck and the Algonquins of Ontario, two groups currently negotiating on land treaties for the area, have praised Windmill’s community outreach.

Windmill has promised to create jobs for Algonquin trades workers and are undertaking the project with the goal to be as sustainable as possible. The area was once a heavy industrial site and requires serious decontamination.

On Tuesday Windmill partner Rodney Wilts said he is confident the appeal will be dismissed.

“By all accounts planning for this project was sound and in alignment with all laws and regulations and official plans. We have consistently been winning all these challenges,” he said.

This article originally appeared on on March 9.

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