Developers return to court over occupied Caledonia building site
The dispute over a cancelled Caledonia subdivision that has been occupied by Indigenous land defenders for over 18 months is heading back to court.
On Tuesday, lawyers for Foxgate Developments - a joint venture of Losani Homes and Ballantry Homes - secured a court date for a new hearing into a permanent injunction barring land defenders from the 25-acre site, which has become known as 1492 Land Back Lane.
Today the court reset the timeline to Foxgate's application for a permanent injunction," William Liske, vice-president and chief legal officer for Losani Homes, told The Spectator in an email after Tuesday's assignment court hearing.
The builders first turned to the courts in the summer of 2020 after land defenders from nearby Six Nations of the Grand River claimed the McKenzie Road property as unceded Haudenosaunee territory.
Shortly thereafter at Superior Court in Cayuga, Superior Court Justice R. John Harper issued a temporary injunction preventing unauthorized personnel from being on the land.
Police efforts to clear the site were unsuccessful, sparking violent skirmishes and prompting land defenders and their allies to barricade surrounding roadways.
Last December, Ontario's top court ruled that 1492 Land Back Lane spokesperson Skyler Williams - the only person named in the injunctions - was denied fairness" when he was disqualified from participating in the October 2020 legal proceedings that saw Harper's injunction made permanent.
Harper refused to hear constitutional arguments from Williams, who was self-represented at the time, and ultimately dismissed him from the proceedings.
Williams has long pushed for nation-to-nation discussions between Haudenosaunee hereditary leadership on Six Nations and senior levels of government. He now has until April 29 to file materials with the court ahead of a two-day injunction hearing set to begin Sept. 12.
Liske said Foxgate has no objection to Williams taking part in the injunction hearing.
Foxgate has never opposed Mr. Williams' participation or his raising of issues related to the role of the federal and provincial governments," Liske said.
The 218-unit subdivision was cancelled last summer and prospective homebuyers had their deposits returned.
At this point any prospects of reviving the housing project look bleak and far away, but we are required to keep trying under our legal obligation to mitigate our damages," Liske said.
Six Nations members and supporters continue to frequent the site, which is dotted with tiny homes and several larger buildings, along with a community garden.
Taking the matter back to court, Liske said, is an opportunity to get clarity on the McKenzie property, which sits within the Haldimand Tract.
The completion of a final judgment in the injunction proceedings is an important step to definitively proving Foxgate's legal right, title and ownership of the lands," Liske said.
Williams' lawyers from the Toronto-based Community Justice Collective would rather all sides to the dispute enter into mediation led by an impartial third party.
We strongly believe that the best thing would be to sit down and negotiate, and not head back to court," said lawyer Aliah El-houni in a phone interview.
So many people have been named, with so many interests at play and so many legal obligations to balance, that the courts are actually not the best venue for this."
El-houni said rather than another adversarial" court process, mediation is the more appropriate venue to discuss complex issues with multiple interests to be balanced."
Injunctions in order to assert police violence ... are not the equitable way to address these cases," El-houni said.
The catch would appear to be getting the provincial and federal governments - who are among the defendants in a $200-million lawsuit launched by Foxgate in April 2021, seeking damages for the interrupted build - to agree to sit at the negotiating table.
Canada and Ontario have spent this whole period trying to dodge responsibility," El-houni said.
It continues to really be on them to get us to this table. That to me is a reflection that there are deep colonial issues here that we continue to see playing out."
J.P. Antonacci's reporting on Haldimand and Norfolk is funded by the Canadian government through its Local Journalism Initiative. jpantonacci@thespec.com