Land Back Lane injunction dispute in Caledonia, Ontario, back in court

The developer behind controversial efforts to build a subdivision in Caledonia, Ont., was back in court on Monday, seeking a permanent injunction against Six Nations protesters who have been at the site for more than two years.

Foxgate Development (a joint venture between Losani Homes and Ballantry Homes) planned to build over 200 residences at the location they called McKenzie Meadows in 2020.

Activists stopped work, claiming the land was unceded Haudenosaunee territory, and renamed it 1492 Land Back Lane.

The land is on the Haldimand Tract, which was 384,451 hectares of land along the Grand River granted to the Six Nations in 1784 for allying with the British during the American Revolution.

Skyler Williams served as the spokesperson for the 1492 Land Back Lane camp. The Six Nations-led group erected several buildings and remained at the site.

Police arrested dozens of protesters in the months that followed. As part of a legal action, the developers have sought an injunction to ban activists, also known as land defenders, from the site and to prohibit them from blocking roads in the area.

A judge granted the injunction, but in December 2021, Ontario’s highest court ruled that the judge had denied Williams the opportunity to be heard.

The Court of Appeal concluded that the proceedings were unfair and overturned the permanent injunction prohibiting access to the site.

The parties returned to court on Monday.

Foxgate lawyer says company has no obligation to fix Crown issue

Paul DeMelo, Foxgate’s attorney, gave Judge Paul Sweeny numerous reasons why Foxgate thinks a permanent injunction should be granted.

Some of the reasons he mentioned include:

• No one has asserted their treaty rights in court (under Section 35 of the Charter), adding that this must be asserted by an Indigenous community, not an individual like Williams.
• No land claims have been filed and no indigenous communities have sought injunctions.
• There are no lawsuits against Foxgate.
• There was no dispute over title to the land.
• Private developers, like Foxgate, have no obligation to consult with Indigenous groups or resolve their claims against the Crown.

« No one in this proceeding, your honor, is saying my clients did anything wrong. No one is saying my clients stole the land. No one is saying my clients acquired the land improperly, » a DeMelo said in court.

« My clients are simply being held hostage in the dispute between the Crown and Indigenous communities. »

DeMelo added that the Land Defenders had « clearly encroached » and that had a financial impact on Foxgate.

The court also heard that there are numerous unresolved legal proceedings relating to the protests at the Foxgate development, including a counterclaim between Haldimand County and Williams.

Bruce Macdonald, the Haldimand County attorney, also spoke in court on Monday, saying Williams had filed a counterclaim related to « compensation » – which usually has to do with finding money for the damage.

Haldimand County spokeswoman Erin Haase told CBC Hamilton in an email that the county’s counterclaim was intended to bolster the county’s claim for a permanent injunction on its roads.

Macdonald said an August 2020 interlocutory injunction regarding the roads is still in effect and is needed, even though the blockades have been gone for some time. Interlocutory means that it applies until the start of the trial.

Williams’ attorneys began presenting their case on Monday afternoon, but didn’t get a chance to finish until 4:30 p.m.

In an online post before the trial began on Monday, Williams said « our people don’t have much faith in Canadian courts. » But, he said, « we are giving them the opportunity this week, September 12 and 13, to show what is meant by reconciliation. »

All parties will return to court in Cayuga, Ont., Tuesday at 10 a.m.