Judge grants permanent injunction to developer of controversial project near Six Nations, Ont.

An Ontario judge has granted a permanent injunction to Foxgate Developments, barring demonstrators from the site of a controversial subdivision project in Caledonia, Ont.

Haudenosaunee land defenders, who have built structures and planted trees on the property known as 1492 Land Back Lane over the past two years, say they will continue to occupy the land and will appeal the decision.

"Our people will continue to live peacefully at 1492 Land Back Lane," said spokesperson Skyler Williams on Wednesday in a news release. "Any disruption to peace here will be brought on by the courts, developers, and police, which we will absolutely defend ourselves from."

Lawyers who represented Williams in Cayuga Superior Court when the case was heard in September had argued that there shouldn't be a permanent injunction, saying Williams and others have asserted their treaty rights (per Section 35 of the Constitution Acts) and because injunctions have already criminalized Williams and other community members.

This week, the judge sided with Foxgate, determining Williams and the two other land defenders named in the case as John Doe and Jane Doe, "have no authorization to act on behalf of the community" to claim treaty rights.

'Supports the need for a permanent injunction'

"The conduct of the defendants, including the destruction of property and the continuing trespass, supports the need for a permanent injunction," wrote Justice P. R. Sweeny in his decision.

Sweeney referenced the Coastal GasLink case in his decision, noting that in that instance of land defenders trying to stop the construction of pipeline in British Columbia, the court noted that the pipeline company has all the permits required by law, and the defendants had no legal right to blockade the property despite their "honestly-held beliefs" to the contrary.

"The defendants did not challenge the validity of the plaintiff's permits and authorizations through legal means but rather chose to pursue unlawful self-help remedies in furtherance of their goal of preventing construction of the pipeline project," Sweeney wrote in the decision, referencing Coastal GasLink.

Earlier this week, a B.C. Supreme Court judge sentenced five protesters, including Williams, for ignoring a court order forbidding them from blocking access to the Coastal GasLink pipeline.

A portion of the project is being built across territory to which their defence lawyer in B.C., Frances Mahon, said Canada's top court has acknowledged the Wet'suwet'en have "unextinguished Aboriginal rights."

Three protesters were handed a $500 fine and two others received 25 hours of community service.

'We are never going to leave'

The disputed site in Ontario, known by Foxgate as McKenzie Meadows, has been the location of an occupation since July 2020. Police have arrested dozens of demonstrators in that time.

Foxgate, a joint venture between Losani Homes and Ballantry Homes, planned to build 218 units at the location in 2020.

Activists stopped the work, saying the land was unceded Haudenosaunee territory, and renamed it 1492 Land Back Lane.

The land sits on the Haldimand Tract, which covers 384,451 hectares of land along the Grand River and was granted to Six Nations in 1784 for allying with the British during the American Revolution. 

Six Nations elected council approved the development, but some in the community do not recognize the council and many do not participate in elections. Others on Six Nations recognize the Haudenosaunee Confederacy Chiefs Council as the leaders of the community instead.

In the release issued Wednesday, the land defenders said they are viewing the permanent injunction as a "very serious threat" to their safety. 

"This decision now gives Foxgate Developments the ability to seek police enforcement of this injunction. Previous enforcement attempts led by police resulted in serious harm to our community," the statement read.

"Canada's colonial legal system is fundamentally designed... to deny our inherent connection to our lands, to dispossess us in order to extract resources and develop our territory without our consent. This is exactly how land left is made legal. 

"We will be free on our land for however long it takes Canada to realize we are never going to leave and for generations after that."