The spokesperson for an ongoing Haudenosaunee-led land occupation in Caledonia, Ont. has succeeded in overturning a permanent injunction held by local builder Foxgate Developments.
In a ruling handed down Tuesday, the Ontario Court of Appeal cancelled the injunction granted last October and overturned a cost award of more than $168,000 against Skyler Williams.
Williams, a Mohawk Nation member from Six Nations of the Grand River, spoke on behalf of the 1492 Land Back Lane group that successfully thwarted the proposed McKenzie Meadows subdivision by occupying the development site.
Three appellate judges agreed Superior Court Justice John Harper denied Williams procedural fairness by refusing to assist him, striking his pleadings from the record and finding him in contempt of court.
“As a result of the motion judge’s error in conflating contempt and abuse of process, and the denial of a fair opportunity to Mr. Williams to be heard, the motion judge’s orders granting the permanent injunction and striking Mr. Williams’ pleadings in the action are set aside,” wrote Justice Lorne Sossin.
Foxgate, a joint venture between Losani Homes and Ballantry Homes, sought and obtained an interim injunction after the group walked on to the site and halted work on July 19, 2020.
Ontario Provincial Police swooped in a few days later to break up the occupation, but community members and allies responded by blocking roads, closing rail lines and lighting tire fires.
Harper extended the injunction later that month. Then on Oct. 22, 2020, Harper made two injunctions permanent, prohibiting anyone from interfering with the development or blocking roads.
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Williams represented himself during the hearing in which Harper criticized him and ruled him in contempt of court. A skirmish broke out a little while later when officers tried to arrest people who threw rocks at a cruiser. Another round of blockades followed.
The appeal court concluded Harper failed to explain the exact alleged misconduct at issue, didn’t lay out potential consequences (including an award of costs) and didn’t give Williams a fair chance to retain an attorney or respond to the allegations against him.
“The requirements of fairness in the context of this proceeding constituted an independent right of Mr. Williams,” wrote Sossin. “It is no answer to the denial of these rights to say a fair opportunity to be heard would have made no difference in the outcome.”
The appeal court granted Williams $20,000 in costs and said a different judge should re-hear the matter.
Williams couldn’t be reached for comment, but he thanked his and the group’s supporters in a social media post.
A spokesperson for Foxgate noted the company never intended to ban Williams from the hearing or strike his filings, which the judge did on his own motion.
William Liske, vice president and chief legal officer at Losani Homes, said both Foxgate and Williams tried to involve various levels of government, something the company hopes the ruling accomplishes.
“And although we disagree with some of the Appeals Court’s findings,” Liske added in an email, “we welcome the decision today which will ultimately allow all parties to be heard.”
Williams tried to bring the Crown into the case by filing a notice of constitutional question alongside third-party claims against Canada and Ontario. But these were among the materials tossed out.
The virtual court also muted him. But before it did Williams urged Harper to consider his identity as a Mohawk man bound by Haudenosaunee law “who does not belong before this colonial court.”
Harper’s refusal to deal with this latter point constituted yet another mistake, the appeal court found.
“Mr. Williams is Indigenous, and the issues he raised engage substantial questions that concern both the rule of law and the sui generis [unique] nature of Indigenous legal claims,” wrote Sossin.
Foxgate sued Williams, Canada, Ontario and the police for more than $200 million on April 15, 2021.
Liske said the statement of claim was only served on the governments and provincial police who have yet to file defences.
The police spent more than $16 million on operations in Caledonia. The standoff drew the attention of the Canadian Security Intelligence Service at its peak.
While the Six Nations elected council signed an agreement to publicly support the development, the traditional Six Nations chiefs endorsed the occupation.
Both governments have said they agree, however, that developments shouldn’t be moving forward while the community’s 27 land claims remain outstanding.
Internal government documents written during the first blockades said a lawsuit launched by the elected council over the claims “poses high risk for the Crown, and will result in a significant damage award.”
Foxgate cancelled the build in July 2021, a year after the occupation began.
