1492 Land Back Lane files 11th hour constitutional question as injunction hearing looms

The spokesperson for a Six Nations land reclamation camp that has halted a housing development in Caledonia, Ont., served notice to Ottawa and Ontario on a constitutional question days before an Ontario court judge rules on whether to grant a permanent injunction against the camp. 

Skyler Williams, a spokesperson for 1492 Land Back Lane — a camp set up in mid-July on a property slated to become a development called McKenzie Meadows — served the Attorney General of Ontario and the Attorney General of Canada on Tuesday, according to the court filing. 

"The Crown, Canada and Ontario, is guilty of negligence in this case because they have breached their duty of care owed to the defendant and all other people of Six Nations, causing harm to the defendant and potentially irreparable harm to Six Nations," said the filing.

"The duty of care breached by the Crown is the Province's duty to consult with Aboriginal peoples and accommodate their interests, which is grounded in the principle of the honour of the Crown, which must be understood generously."

An Ontario Superior Court judge is scheduled to rule Thursday on whether to grant a permanent injunction against 1492 Land Back Lane's continued occupation of the development lands. The developer, Foxgate Development, is seeking the injunction and supported by Haldimand County, the municipality that oversees Caledonia, which sits about 22 kilometres south of Hamilton.

Six Nations of the Grand River, the most populous First Nation in the country, neighbours Caledonia.

If the judge grants the permanent injunction, the Ontario Provincial Police would then be compelled to remove the camp. The court has continually extended a temporary injunction first granted in late July.

The OPP raided the camp in August, setting off a chain-reaction of highway, road and railway blockades around Caledonia that saw tires set on fire, rock throwing and officers firing rubber bullets. 

A senior OPP officer said in an affidavit filed as part of the injunction case that a second raid could trigger a much stronger reaction that could see railways, bridges and hydro stations "attacked and damaged in retaliation for the use of force by police." The OPP affidavit also said that infrastructure could be targeted in other parts of the country.

The filing states that Six Nations and the Haudenosaunee Confederacy Chiefs Council have "legitimate grievances and concerns" to dispute title to the lands under reclamation. The council is the traditional Six Nations government which supports the reclamation. 

The Six Nations elected council has a signed agreement with the developer for the McKenzie Meadows project.  

The filing also states that the land is covered under the 1701 Nanfan Treaty between the British and the Haudenosaunee Confederacy in addition to its inclusion as part of the Haldimand Tract, which was granted to Six Nations in 1784 for allying with the British during the American Revolution. 

The Nanfan Treaty granted the Haudeneosaunee the right to harvest, hunt and fish through a large swath of land covering the midwestern U.S. and southern Ontario. 

The filing said the planned McKenzie Meadows subdivision is also on part of the Haldimand Tract that the Haudenosaunee have repeatedly and specifically attempted to secure in the face of widespread squatting since the 1820s.

"Between 2006 and 2020 there have been consistent protests and disruptions targeting development on Haldimand Tract lands, including those directly adjacent to the lands now known as 1492 Land Back Lane," said the filing.

Six Nations elected council says accommodation not required 

It's unclear whether the constitutional argument will have any impact on Thursday's hearing.

A spokesperson for the Attorney General of Ontario said in an emailed statement that it received "a notice of constitutional question" on Tuesday evening. However, these types of notices are required to be filed 15 days before a hearing, said the statement.

"The Attorney General is reviewing the notice," said the statement. 

Justice Canada did not respond to a request for comment before the time of publishing. 

Ontario Justice R.J. Harper, who is presiding over the injunction case, said during an Oct. 9 hearing that he would not entertain constitutional arguments unless the people at 1492 Land Back Lane packed up and vacated the premises. 

The Six Nations elected council has stated publicly that, according to Ontario court decisions, there was no requirement for a private entity, like a developer, to accommodate Six Nations for developing lands that were illegally taken in the 1800s. Yet, the council said, Foxgate had transferred 17 hectares of land and $352,000 to Six Nations for accommodation. 

Foxgate never consulted with the Haudenosaunee Confederacy Chiefs Council before commencing its project. 

Six Nations elected council has an ongoing court case, filed in 1995, against Ottawa and Ontario over lost lands. It is scheduled to go to trial in 2022.