The arguments for and against a permanent injunction against demonstrators at the site of a controversial development in Caledonia, Ont., ended Tuesday and now lawyers representing both Foxgate Developments and Haudenosaunee land defender Skyler Williams are waiting for the judge's final decision.
Lawyers representing Williams said in Cayuga Superior Court on Tuesday there shouldn't be a permanent injunction, saying Williams and others have asserted their treaty rights (per Section 35 of the Charter of Rights and Freedoms) and because injunctions have already criminalized Williams and other community members.
It comes a day after the lawyer representing Foxgate Developments laid out their case for why there should be a permanent injunction at the site that has seen a two-year-long occupation, and dozens of arrests by police of demonstrators.
Williams has been the spokesperson for the demonstrations, which refer to the site as 1492 Land Back Lane. He sat in court Tuesday with about 10 supporters, eager to hear his lawyers argue on his behalf.
One of the arguments in favour of the injunction from Foxgate lawyer Paul Demelo on Monday was that no one has asserted their treaty rights before the courts. He argued it has to be asserted by an Indigenous community, not an individual like Williams.
2008 case offers lessons on criminalization: Williams lawyer
Meaghan Daniel, one of the lawyers representing Williams, told Justice Paul Sweeny on Tuesday there is legal precedence for not allowing the injunction and DeMelo was "misreading the law."
She said an analytic framework needs to be applied to this case because she argues the injunction could be a potential rights infringement and could cause the criminalization of Indigenous people.
The framework comes from a dispute between Frontenac Ventures and Ardoch Algonquin First Nation in 2008. The First Nation is near Kingston, Ont.
The company wanted to explore and drill for uranium, leading to occupations, injunctions, and convictions against some Indigenous protesters — but the Court of Appeals made a ruling that prompted the release of Ardoch Algonquin First Nation co-chief Bob Lovelace from jail.
Daniel said while no one has asserted their treaty rights before the courts related to the potential injunction in Caledonia, it's clear they've been asserted outside of the courts.
Her examples included:
A civil action from Six Nations elected council regarding the Haldimand Tract.
Haudenosaunee Confederacy Chiefs Council (HCCC) also trying to intervene on that action.
HCCC issuing a moratorium on the Haldimand Tract.
Community members renaming the Mackenzie Meadows property 1492 Land Back Lane.
"The Crown seems to submit … the last few hundred years of conflict — that for my client and the other Indigenous people in this room, the clear and plain fact the Haldimand Tract was claimed by Six Nations — has somehow been erased by Mr. Williams not asserting [his rights]," Daniel said.
Daniel said the demonstrations at the development in Caledonia led to police use of force and arrests, which she said is the second condition that should trigger the analytical framework.
She said with that framework, the courts must ensure the Crown is fulfilling its duty to consult the First Nation and that all efforts have been exhausted to obtain a negotiated or legislated solution to the dispute.
Judge asks if ruling could be a slippery slope
Sweeny mentioned that Six Nations elected council approved the development and asked whether they were also considered Haudenosaunee, which prompted people sitting in court to yell out in protest.
He unknowingly waded into a hot button issue in the community — the elected council was established under the Indian Act 1924 and elections have seen low voter turnout. Many in the community recognize HCCC as the leaders of the community instead of the elected council.
Sweeny also asked if Daniel's arguments could potentially lead to a homeowner having to file an injunction because an Indigenous person or community had an issue with the homeowner wanting an addition to their house.
Daniel said, theoretically, yes, but that would likely never happen, saying an addition to a home doesn't have the same impact as a 200-house development like the one planned by Foxgate.
Aliah El-houni, another of Williams' lawyers, said there could also be Gladue principles and some Charter values that apply in this case.
She said Gladue principles, which require circumstances in an Indigenous person's life to be taken into consideration in sentencing, have been used outside of the context of criminal courts.
El-houni also cited a Yellowhead Institute report that found corporations were successful 76 per cent of the time when filing for an injunction against First Nations opposition to resource development projects — but when First Nations filed injunctions against corporations, they were only successful 19 per cent of the time.
She asked Sweeny to not ignore the community's worldview over dominant processes and said the solution should be negotiations, redirecting the parties and that all efforts have been exhausted to avoid adjudication.
Appeal is likely, regardless of decision
Williams walked out of the courthouse on Tuesday afternoon and hugged his lawyers.
He told reporters even just having a chance to have his voice heard in court was a win.
Williams said the courts and developers have exploited the fact Indigenous communities need space and time to heal from generations of trauma and also their requests to develop and use land.
"For us as a community to be able to come together with one voice right now is a very difficult thing to do right now ... I don't argue the fact that dealing with our communities is a bureaucratic nightmare, it is — but it is not of our choosing, of our making, that it's that way," he said.
"For developers in these courts and Ontario and Canada to continue to exploit those divisions in our community, whether it be through resource extraction or housing developments, this is the major problem that's going to keep seeing Indigenous people before these courts, arguing these same things over and over and over again."
It's unclear when the judge will return with a ruling on whether the injunction should be allowed or not, but Williams said an appeal is likely, regardless of the answer.
And if Sweeny does grant a permanent injunction, Williams said he's not sure what the community's response will be.
"I can't say whether or not our community is going to be on the land tomorrow or the day after that. That is up to my community," he said.