Developers in Caledonia property dispute granted permanent injunction barring Six Nations land defenders from site

It was a legal victory for developers looking to build on a Caledonia property occupied by Indigenous land defenders since July 2020.

On Tuesday, Superior Court Justice Paul Sweeny granted Foxgate Developments a permanent injunction barring unauthorized personnel from the 25-acre property on McKenzie Road, which was to be a 218-unit subdivision but became known internationally as 1492 Land Back Lane after being taken over by a group from Six Nations.

Foxgate has legal title of the lands. Once title is established, the owner has the right to prevent others from trespassing," Sweeny said in a 26-page written decision.

The conduct of the defendants, including the destruction of property and the continuing trespass, supports the need for a permanent injunction."

Sweeny was unconvinced by legal arguments put forth by lawyers for 1492 Land Back Lane spokesperson Skyler Williams that the Crown failed in its duty to consult with Indigenous communities before granting Foxgate permission to build.

That duty to consult, Sweeny said, is owed to representative bodies, not individuals such as Williams and his fellow land defenders.

The judge noted Foxgate did consult with Six Nations Elected Council - which agreed not to oppose the build in exchange for cash and land elsewhere - while the Haudenosaunee Confederacy Chiefs Council - the traditional leadership on the reserve and the group backing the land defenders - did not participate in the injunction hearing on Williams' behalf.

Sweeny said to insist the Crown resolve the Caledonia dispute could lead to a situation where a homeowner within the Haldimand Tract along the Grand River gets the necessary permission to put an addition on their house, only to be stopped by an Indigenous neighbour who opposes the build and demands the Crown step in and negotiate a solution.

During the two-day hearing in September, Williams' lawyers dismissed that scenario as unlikely," but in his ruling Sweeny said since the McKenzie land title was surrendered and Foxgate obtained the property legally, the developers have the same legal rights as individual homeowners.

The homeowner's title is secure, as is the title of Foxgate. Mr. Williams has no basis or standing to challenge it," Sweeny said.

The judge acknowledged permanent injunctions should be granted sparingly," since they in effect decide the issue under dispute. But he said Foxgate proved it had exhausted all other means to remove those occupying the property, and without the permanent injunction, the disruption was likely to continue.

Foxgate has done all it is required to do to build the homes on the lands," Sweeny said. The defendants have no right to occupy the lands."

Two of Williams' lawyers, Aliah El-houni and Sima Atri of the Community Justice Collective, said injunctions are disproportionately used to remove First Nations people from their lands, allowing century old injustices to replicate themselves."

Six Nations people and their allies are fighting that injustice on the ground, and we will do the same in the courtroom," the lawyers said in the statement.

Granting the permanent injunction could set the stage for the OPP to move in and clear the site, which after nearly 900 days, remains home to land defenders and is dotted with tiny homes, several larger buildings, communal garden plots and some construction equipment and materials.

In a statement, the Land Back group vowed to resist any outside pressure to evict them from what they claim is unceded Haudenosaunee territory, saying they will remain at 1492 Land Back Lane forever."

Any disruption to peace here will be brought on by the courts, developers, and police, which we will absolutely defend ourselves from," Williams said in the statement.

A representative from Foxgate could not be reached for comment about the future of the property.

The Land Back group criticized the judge's reasoning for granting the injunction, saying the Crown asserted title to the McKenzie property in 1853 without consent of the Haudenosaunee, in a time when Indigenous People had no right to defend their interests in court."

This is exactly how land theft is made legal," the group said.

In his decision, Sweeny noted there is a separate lawsuit underway, launched by Six Nations elected council in 1995, seeking an accounting of what happened to the Haldimand Tract lands.

Tuesday's ruling also upholds an earlier injunction granted to Haldimand County to prevent anyone from blocking roadways in the county.

J.P. Antonacci's reporting on Haldimand and Norfolk is funded by the Canadian government through its Local Journalism Initiative. jpantonacci@thespec.com