Appeal court rules with Land Back Lane activist, finds he was denied a chance to be heard

Ontario's highest court has ruled a judge denied Land Back Lane spokesperson Skyler Williams an opportunity to be heard, and has set aside an injunction barring access to a disputed housing development in Caledonia, Ont.

The Ontario Court of Appeal decision released Tuesday allows Williams' appeal, and says Ontario Superior Court Justice R.J. Harper conflated contempt and abuse of process when he dismissed Williams's arguments for staying on the site.

Appeal Court Justice Lorne Sossin, writing for the panel of three judges who heard the case, said roughly $168,000 in costs imposed against Williams must be set aside.

The ruling also states that the developers involved in the project must pay Williams $20,000, a figure the parties involved in the case agreed would be paid to whichever of them was successful.

Sossin wrote that it was unfair to keep Williams, who was self-represented, from taking part, that he sought to raise "substantial questions" about Indigenous legal claims, and that he was denied the procedural safeguards he was entitled to.

The Court of Appeal found Williams was denied fairness in the following ways:

• Harper did not take appropriate steps to notify Williams about the exact nature of the proceeding against him — whether it was contempt, abuse of process or both.
• Harper did not provide particulars of the exact conduct that was an issue.
• Harper did not set out the potential consequences Williams could face, including costs.
• Harper did not give Williams an opportunity to consult or arrange for a lawyer before the order was made.
• Harper did not give Williams an opportunity to respond to the specific allegations against him before making the order.

Barry Yellin, a partner with Hamilton-based Ross & McBride LLP, argued in October that the legal process that led to permanent injunctions around the development was "procedurally unfair" and a new hearing should be ordered.

Yellin said Harper's decision last year to dismiss arguments Williams had for staying on the disputed territory meant questions around the history of the land and Indigenous rights were silenced.

Doing so "left no room for reconciliation," according to the lawyer.

Yellin shared the court of appeal's decision with reporters in an email on Tuesday that listed some highlights of the ruling, but said he had no further comment.

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

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.

Paul DeMelo, a lawyer with Kagan Shastri LLP, represented the developers at the court of appeal and argued in October that Harper's decision should stand.

He said Williams continuing to visit the site in defiance of the judge's order lessened the status of the court in the eyes of the public.

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

Developer calls for government assistance

In a statement to CBC News on Tuesday, a representative for Losani Homes said Foxgate Developments had no intention of blocking Williams from participating in court.

"Mr. Williams has attempted, as has Foxgate, to obtain assistance from the various levels of government," chief legal officer William Liske said in an email. 

"It appears that the decision of the Court of Appeal will do just that, and although we disagree with some of the Appeals Court's findings, we welcome the decision today which will ultimately allow all parties to be heard."

The development 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 parts of municipalities such as Waterloo, Brantford and Caledonia.

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

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, and in July, roughly a year after the occupation began, the developers announced the project had been cancelled.