Process leading to Land Back Lane injunctions was unfair to Indigenous protesters, court hears

A lawyer representing 1492 Land Back Lane spokesperson Skyler Williams told Ontario's Court of Appeal on Tuesday that the legal process that led to permanent injunctions around a disputed housing development contained "no attempt at reconciliation."

Barry Yellin, a partner with Hamilton-based Ross & McBride LLP, is representing Williams before the court.

He told a panel of three judges this week that Ontario Superior Court Justice R.J. Harper's decision last year to dismiss arguments Williams made then to support his presence on the disputed territory meant questions around the history of the land and Indigenous rights were silenced.

"What is clear is that the process ... was procedurally unfair," said Yellin, adding, "this court ought to order a re-hearing."

The land in question is a housing project in Caledonia, Ont. Foxgate Developments — a joint venture between Losani Homes and Ballantry Homes — had hoped to build more than 200 residences on the site it called McKenzie Meadows.

Paul DeMelo, a lawyer with Kagan Shastri LLP,  is representing the developers. He told the court of appeal that Harper's decision should stand, arguing the fact that Williams continued to visit the site amounted to an abuse of process.

"Simply because one disagrees with a court order doesn't give one the right to disobey that court order," said DeMelo.

"Very clearly Mr Williams was engaged in a process of the court and lessening the status of the court in the mind of the public by refusing to abide by any order … that Mr. Williams did not agree with."

Williams and other Six Nations land defenders began occupying the site in July 2020. The demonstrators say it is unceded Haudenosaunee territory and have dubbed it 1492 Land Back Lane. 

The land sits on the Haldimand Tract which was land granted to Six Nations of the Grand River in 1784 for allying with the British during the American Revolution. It covers roughly 384,451 hectares along Ontario's Grand River, and includes municipalities such as Waterloo, Brantford and Caledonia.

The months that followed the occupation saw OPP raids, arrests and blockades go up across area roads.

In October, Harper ruled two injunctions, one to stop blocking roads and the other requiring the demonstrators to leave the development, would be made permanent.

But the demonstrators did not leave. In May, Williams turned himself in after facing charges related to the occupation, but was later released, and in July, roughly a year after the occupation began, the developers announced the project had been cancelled.

Still, the injunctions remain.

A rally was held outside the court of appeal on Tuesday. Demonstrators held signs in support of Indigenous land sovereignty and speakers, including Williams, addressed the crowd.

In an interview with CBC on Monday evening, the Mohawk, Wolf Clan member of Six Nations of the Grand River said while he'd like to be optimistic, he doesn't have much faith in the legal system.

"These court injunctions that have been granted without any argument from our side whatsoever [are] an absolutely infuriating testament to what these courts have done to our people over the last 150 to 200 years," he said.

Williams added that the injunctions also threaten the "nation-to-nation relationship" the federal government keeps talking about by putting it "in hands of these courts." 

"These are our lands and are going to continue to be our lands, regardless of what that injunction says," he said.

Representatives of the attorneys general for Ontario and Canada were present during the appeal court hearing, but didn't make any comments.

A lawyer for Haldimand County also did not make any verbal submissions.

'The bluntest tool was deployed'

The court of appeal heard that Williams did not argue that he continued to visit Land Back Lane in defiance of Harper's order.

DeMelo described him as being "wilfully in defiance of the court" and said that if someone wants to argue before the court then they should follow its process.

"If one does not accept the decision of the court … your remedy is to appeal," he said, not to disobey its order.

Appeal Court Justice David Doherty responded by asking whether "tossing Mr. Williams out may close the door on some very important arguments?"

DeMelo responded that there is nothing stopping Indigenous groups or communities from coming forward to make the same arguments about the land claim, but none have.

Yellin said the judge could have appointed an amicus curiae to assist with the court process as Williams was an Indigenous person who was representing himself.

An amicus — also known as a "friend of the court" — is not directly involved in either side of a case, but can draw the court's attention to legal issues.

That would have been a "procedural safeguard that may have stopped the train from going down the tracks," said Yellin.

Instead, Williams's materials and pleadings were struck out, barring him from participating and allowing the court to judge not only his rights, "but the rights of the large Indigenous community," said his lawyer.

"The die was cast. The appellant's fate was sealed. The bluntest tool was deployed."

The court reserved its judgment on the appeal, meaning it will be shared at a later date.