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 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 that Ontario Superior Court Justice R.J. Harper's decision to strike the pleadings and materials Williams raised just over a year ago 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."

Harper first issued the orders in July 2020 after Williams and other Six Nations land defenders, began occupying the site. 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 saw OPP raids, arrests and blockades go up across area roads.

Two orders were put in place, one to stop blocking roads and the other requiring the demonstrators to leave the development.

But they did not leave. Roughly a year after the occupation began, the developers announced the project had been cancelled.

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.