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 land in Caledonia that had been occupied by Indigenous land defenders since July 2020.

On Tuesday, Supreme Court Justice Paul Sweeny granted Foxgate Developments an injunction barring unauthorized personnel from entering the 25-acre property on McKenzie Road, which was supposed to be a 218-unit subdivision but after it was acquired by known internationally as 1492 Land Back Lane became a group of Six Nations.

“Foxgate has legal title to the land. Once title is established, the owner has the right to prevent others from entering the property,” Sweeny said in a 26-page written decision.

“The defendants’ conduct, including property destruction and continued trespassing, supports the need for a permanent restraining order.”

Sweeny was unconvinced by legal arguments put forward by solicitors for 1492 Land Back Lane spokesman Skyler Williams that the Crown had failed in its duty to consult with Indigenous communities before granting Foxgate planning permission.

That duty of consultation, Sweeny said, is owed to representative bodies, not individuals like Williams and his fellow land defenders.

The judge found that Foxgate consulted with the elected Council of the Six Nations — which agreed not to oppose construction in exchange for money and land elsewhere — while the Haudenosaunee Confederacy Chiefs Council — the reservation’s traditional leadership and the group supporting the Land Defender supported – did not attend the restraining order hearing on behalf of Williams.

Sweeny said insisting that the Crown resolve the Caledonia dispute could lead to a situation where a homeowner in the Haldimand Tract along the Grand River is granted the necessary permit to add an annex to his home, only to have it done by an Indigenous Being stopped by neighbors who are resisting construction, urging the Crown to intervene and negotiate a solution.

During the two-day hearing in September, Williams’ attorneys dismissed that scenario as “unlikely,” but in his ruling, Sweeny said that since McKenzie relinquished land title and Foxgate legally acquired the property, developers had the same statutory rights as individuals homeowners have .

“The homeowner’s title is secure, as is Foxgate’s title. Mr. Williams has neither the basis nor the standing to contest this,” Sweeny said.

The judge conceded that injunctions should be granted “sparingly” because they actually decide the issue at issue. But he said Foxgate had proven it had exhausted all other means to remove the property’s squatters and without the permanent injunction, the disruption is likely to continue.

“Foxgate did whatever it took to build the houses on the land,” Sweeny said. “The defendants have no right to occupy the country.”

Two of Williams’ attorneys, Aliah El-houni and Sima Atri of the Community Justice Collective, said injunctions are “disproportionately used to force First Nations people off their lands, potentially repeating centuries-old injustices.”

“Six nations and their allies are fighting this injustice on the ground, and we will do the same in the courtroom,” the lawyers said in the statement.

The grant of the injunction could set the stage for the OPP to move in and vacate the site, still home to land defenders after almost 900 days and littered with tiny houses, several larger buildings, communal garden lots 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 say is not ceded Haudenosaunee territory, and said they “will remain at 1492 Land Back Lane forever.”

“Any disturbance to the peace here will be caused by the courts, developers and the police, which we will absolutely defend ourselves against,” Williams said in the statement.

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

The Land Back group criticized the judge’s reasoning for granting the injunction, saying the Crown had asserted ownership of the McKenzie property “without Haudenosaunee consent” in 1853, “at a time when the Native peoples had no right.” to defend their interests in court”.

“This is exactly how land theft is being legalized,” the group said.

In his ruling, Sweeny pointed out that a separate legal battle, instituted in 1995 by the elected Council of the Six Nations, was ongoing to give an account of what happened to the Haldimand Tract land.

Tuesday’s ruling also upholds an earlier restraining order granted to Haldimand County to prevent anyone from blocking roads in the county.