Injunction for calling for demonstrators to leave Caledonia development extended

An injunction that calls for Indigenous demonstrators to leave a residential development just outside Caledonia, Ont. has been extended.

Demonstrators stopped the McKenzie Meadows development on July 19, took over the site and have been there since,  except for a day after OPP moved in and cleared it, enforcing the original injunction.

The demonstrators have renamed the area 1492 Land Back Lane and say it's unceded Haudenosaunee territory.

Superior Court Justice John Harper ruled to continue the injunction and to start working toward a final hearing, which would deal with whether the injunction would become permanent.

He also named Skyler Williams, a member of Six Nations of the Grand River and one of the demonstrators, as a defendant. He has been the public face and primary spokesperson for the protest.

A statement on behalf of a group of Haudenosaunee women opposed to the use of injunctions was also released Tuesday morning before the court appearance in Brantford.

"These matters are complex and we do not believe this court is the appropriate forum to deliberate our concerns or resolve our issues," it read in part.

"We will continue to resist the criminalization of our people and illegitimate development in our territory. We call on the Crown, our allies, to stop the use of injunctions against our people."

Midway through proceedings, a Haudenosaunee woman who was present stood up wanting to speak, presumably to deliver the group statement against injunctions in court. 

Counsel for Foxgate Developments said that the woman approached them before the meeting and indicated that she was there with one of the elders. Counsel said they had agreed to advise the judge that they wanted to speak, but didn't get to do so.

But the judge did not allow the woman to speak, saying instead that they needed to give notice in writing.

He said that OPP commissioner and their counsel Christopher Diana, who spoke after the woman left the courtroom, had given written notice, which is why they were allowed.

He said notice needed to be given out of "fairness."

Prior to ruling on the injunction, the first hour of court was devoted to naming Skyler Williams as a defendant.

Counsel for Foxgate Developments showed videos posted on Williams' Facebook account that detailed police arriving and clearing the site on August 5.

Until today, there had been no named defendants in the case.

They claimed the videos — which included encouragement for people to come to the site and statements that the protestors would keep staying — as well as speaking to the media, portrayed him as a "protest leader."

They argued that naming Williams might result in him "abiding" by the injunction because the change makes him liable for costs.

They also maintained that the move wasn't being done with prejudice, and said if Williams was identified as a "main occupier" at the start, they would have named him then. 

He has been given 20 days to respond. 

The injunction was initially granted to Foxgate Developments Inc. — Losani and Ballantry Homes —  on July 30 and extended on August 7.

It bars anyone from "hindering, interfering with, intimidating, physically obstructing or otherwise impeding" those working for the builders while they develop the site.

The interim order also calls for the demonstrators to "remove any banners, flags, tents, structures or vehicles and to tear down and remove any barricade placed or maintained by them."

William Liske, vice president of Losani and its chief legal officer, previously told CBC it's the company's "sincere hope that all persons involved honour and follow these orders."

The OPP raided the development under the first injunction, arresting several demonstrators. Community members responded by shutting down area roads and a rail line with blockades.

That action was the target of a second court injunction brought by Haldimand County, but demonstrators dismantled the barricades late last week in an effort to de-escalate the situation, saying the focus of discussion should be on the land, not blockades.

Legal representation for Haldimand County said that while the blockades were gone today, it "doesn't mean that they won't be back tomorrow." 

Not continuing the injunction, he argued, gives "the freedom" for people to occupy or set up blockades because there's "nothing precluding them from doing it right now."

Superior Court Justice John Harper said that while protestors have taken blockades down, he thought their "attitude" toward police enforcing the injunction made it likely that the pattern would continue.

The trial coordinator is to schedule the next meeting date where parties will evaluate if a final hearing date can be set.

The OPP also confirmed in court today that the arrests have continued. They said an individual, who had been at the site on Aug. 5, was arrested Monday and charged with mischief and intimidation. 

In a media release issued Tuesday evening OPP said the 36-year-old Hamilton resident was in the area of Argyle Street and 6th Line and "committed several criminal offences." That person is also charged with failing to comply with a release order, according to police.

The statement from the Haudenosaunee women was shared by the Yellowhead Institute, a First Nation-led research centre based out of Ryerson University's Faculty of Arts.

It was unsigned, but included a note saying its authors were anonymous in order to limit the risk of criminalization for speaking out against the injunction.

The statement spoke of the "emotional and spiritual harm" brought by injunctions and said they deny their "inherent right to our land."

The statement also says injunctions allow police violence and that that the women believe injunctions are used to "stifle our people from seeking justice" and block them from engaging in cultural practices, which will impact future generations.

Ground was broken at McKenzie Meadows after the Six Nations of the Grand River's Elected Council was "accommodated" by the builders in two ways, first in 2016 with 42.3 acres and again in 2019 in the form of $325,000, which was put into a land banking account.

But demonstrators say the elected council only represents a fraction of the more than 27,000 people who live on Six Nations and that not enough consultation was done.

The Haudenosaunee Confederacy Chiefs Council has also voiced its support for the demonstrators, saying it believes the development is "unlawful."