Original Published on Sep 14, 2022 at 12:33
By J.P. Antonacci, Local Journalism Initiative Reporter
Lawyers for Indigenous land defender Skyler Williams urged Superior Court Justice Paul Sweeny to consider Haudenosaunee values when deciding whether to grant an injunction to developers seeking to build on the Haldimand Tract.
In the Cayuga courthouse on Tuesday, Aliah El-houni of the Community Justice Collective introduced expert testimony from Susan Hill, director of the Centre for Indigenous Studies at the University of Toronto.
Quoting Hill, El-houni told Sweeny land is a “defining feature” of Haudenosaunee identity and members of the First Nation have a “responsibility to sustain it for future generations.”
This world view, El-houni said, is what motivated Williams and others to stop Foxgate Developments from building a 218-unit subdivision on a Caledonia property now known as 1492 Land Back Lane, which land defenders claim as unceded Haudenosaunee territory.
El-houni asked the judge to apply the Gladue principles, which are most often taken into consideration when sentencing Indigenous defendants, when evaluating Foxgate’s injunction request.
Were an injunction granted to bar anyone not authorized by Foxgate from the construction site, El-houni said it would force land defenders to risk jail time by continuing to occupy the land or “turn their backs” on beliefs “they hold sacred to their way of life.”
Lawyer Paul DeMelo, representing Foxgate, dismissed the Gladue principles as irrelevant to this situation and noted Williams did not cite Section 35 of the Constitution Act, which recognizes and affirms the inherent and treaty rights of Indigenous peoples.
Those rights cannot be asserted by an individual, but Williams’ lawyer Meaghan Daniel argued the long-running land dispute along the Grand River is itself an Indigenous rights issue that should be resolved through consultation and negotiation outside the courtroom.
Prior to an injunction being granted, Daniel said, “The court is being asked to satisfy itself that the Crown has fully and faithfully discharged its duty to consult, and every effort has been exhausted.”
“This is neither unreasonable nor impossible,” she said. “It is what equity demands.”
Ruling in favour of Foxgate would be tantamount to a “de facto judgment” by the court on the land claim in question, El-houni added.
“Injunction proceedings are consistently happening in which decisions are being made that render underlying (land) claims moot,” she said. “This is a serious access to justice issue.”
Lawyers for the Attorney General of Ontario — who attended to respond to the constitutional questions raised by Williams — took no position on the Caledonia dispute, saying there was no need for the Crown to participate since “private parties” such as Foxgate “can present sufficient evidence to a court.”
In the province’s view, lawyer Richard Ogden told Sweeny, existing law “provides sufficient means to balance Indigenous peoples’ claims and private property rights” when injunctions are sought.
In this case, he said, no Six Nations governing body formally asserted their Charter rights or asked to take part in the hearing. The court can make or encourage efforts toward reconciliation “but there is no such requirement in every case,” Ogden added.
He also noted an ongoing lawsuit launched by Six Nations Elected Council in 1995 seeks a financial accounting of what happened to the Haldimand Tract lands, not a return of territory to Six Nations.
DeMelo argued the Charter rights cited by Williams’ lawyers do not give those occupying the disputed land the right to ignore court orders.
“There is no legal right that Mr. Williams is advancing in these proceedings that can overcome the legal right of my client to proceed with this development,” DeMelo said.
The complexity of the unresolved land claims is why an injunction is not appropriate, Daniel countered, noting once Foxgate builds its planned subdivision, the land becomes unavailable to the Haudenosaunee in the future.
“The forced colonial dispossession of land and of law in Indigenous nations has created a legal and political mess. This mess is not one that settlers can ignore when things get complicated,” Daniel said.
“The question for the court is who bears the burden of cleaning up this mess. Is it the Indigenous community who suffered the injustice or the Crown who now faces the difficult task of reconciliation?”
Sweeny will also consider an injunction sought by Haldimand County that would ban all demonstrations on municipal roadways. The judge reserved his decision to a later date.