A spray painted shipping container on the former McKenzie Meadows development site in August 2020. Photo: APTN
The battle over a stymied housing development on disputed territory in Caledonia, Ont., returned to court on Tuesday morning.
Foxgate Developments is re-applying for a permanent injunction against the 1492 Land Back Lane encampment following a successful appeal by Six Nations activist Skyler Williams last December.
Williams, spokesman for the group, says the move threatens to upend more than a year of “relative peace” at the former construction site.
“It’s really hard not to take this as an open threat toward myself and the other people that have called 1492 Land Back Lane home for the last year-and-half,” Williams told APTN News. “Our community has come out very strong to say no. These injunctions are being used to continue that violence, continue that push to dispossess Six Nations of our lands.”
Williams said the group will do “anything that it takes” to maintain the peace. His counsel told the scheduling judge they are proposing a round of talks.
“We sent correspondence on Monday morning seeking out the parties’ positions on sitting down at a negotiation table prior to litigation,” said lawyer Meaghan Daniel, adding that numerous rulings urge discussion “in precisely the circumstances we find ourselves.”
The letter, addressed to lawyers representing Foxgate as well as the federal, provincial and municipal governments, accuses the Crown of failing in its duty to consult.
“Our position is that Skyler Williams is a Haudenosaunee man with inherent, Aboriginal and Treaty rights on the land in question. Any and all actions taken by the state regarding this land triggered a duty to engage,” the letter reads. “As a result of the state’s failure to engage, the predictable has happened, conflict has arisen and relief is now being sought.”
A small group of Six Nations members and supporters began protesting Foxgate’s proposed McKenzie Meadows subdivision in July 2020, drawing attention to the community’s 28 unresolved land claims and related civil lawsuit.
Six Nations is the most populous reserve in the country but currently occupies only five per cent of the initial land base granted to the Haudenosaunee (Iroquois) Confederacy in 1784.
The Six Nations elected council alleges the Crown, over the centuries, robbed the community of all its cash and land through illegal surrenders, expropriation, coercion and fraud.
While Canada publicly denies the allegations, federal officials wrote briefing documents for the minister in August 2020 saying the lawsuit “poses high risk for the Crown, and will result in a significant damage award.”
Read more:
The standoff at 1492 Land Back Lane, one year later
Meanwhile, on the ground, Foxgate quickly obtained an injunction barring anyone from interfering with the project, which resulted in a botched operation by Ontario Provincial Police (OPP) on Aug. 5, 2020.
Supporters retaliated against the raid by lighting tire fires, blocking roads and shutting down nearby train tracks. The OPP were forced to flee after they found themselves significantly outnumbered outside the camp’s back entrance, according to court files.
Foxgate added Williams to the injunction proceedings, arguing the threat of legal consequences might deter the occupation, which eventually backfired too. The presiding judge refused to read Williams’ court filings, struck them from the record, deemed him in contempt of court and booted him from the virtual hearing.
Another skirmish with police broke out immediately afterward, which led to more blockades. On review, the appeal court found the motion judge violated Williams’ right to a procedurally fair process in several different ways.
In court on Tuesday, Foxgate’s lawyer Paul DeMelo said the developer is open to the idea of negotiations but eager to settle the injunction once again.
“Our client has always been open to the notion of having opportunities to sit and discuss, but, in the two years, that hasn’t really afforded itself,” DeMelo said. “While we were never shutting the door to any of those opportunities, we need to get the litigation moving forward.”
Williams previously filed a notice of constitutional question and cross-claims that would’ve added Canada and Ontario as parties to the litigation, which the original judge rejected. He now has the opportunity to file these again.
Williams said he’ll wait and see what happens with possible talks or in court, but he remains defiant about the occupation and noted “the stakes are definitely higher now” than when it began.
“The days of taking advantage of the atrocities that have happened to our people are over,” he said. “Everybody knows that this is Haudenosaunee land. There’s far more people than just me that have made this stand possible.”
Foxgate, in past filings, has argued it is an innocent third party embroiled in a dispute between the Haudenosaunee and the Crown.
The company said it followed all reasonable steps after buying the parcel in 2015, including doing an absolute title search, complying with relevant regulations, and obtaining the support of the elected council through a negotiated “accommodation agreement.”
However, the Haudenosaunee traditional chiefs, who did not sign the deal, have endorsed the occupation and called for a moratorium on development.
In a separate lawsuit for damages, Foxgate claimed the reputations of its two owners — Losani Homes and Ballantry Homes — have been permanently tarnished by accusations of colonial land grabbing.
After the appeal, Losani vice president William Liske told APTN the developer also sought intervention from both provincial and federal governments.
“Although we disagree with some of the Appeals Court’s findings,” he wrote, “we welcome the decision today which will ultimately allow all parties to be heard.”
Foxgate is proposing to move its separate damages claim into case management after the injunction is litigated.
A date of Sept. 12, 2022 was tentatively set for the injunction hearing.
Caledonia residents also filed two class-action lawsuits following the civil unrest, which, in six months, the OPP spent more than $16 million policing.
