“We know whose land this is,” Skyler Williams of Six Nations told officers from the Hamilton sheriff’s office who came to Caledonia on July 31 to serve a Superior Court injunction ordering land defenders off a construction site on McKenzie Road.
But the ownership of the 25-acre plot of land that Foxgate Developments plans to turn into a subdivision is hotly debated. That question is at the heart of an occupation that has been going on since mid-July, with no end in sight.
The Spectator looks at the key issues behind the dispute.
What is McKenzie Meadows?
McKenzie Meadows, also known as The McKenzie, is a planned subdivision on McKenzie Road in the south end of Caledonia. Foxgate Developments — a joint venture between Ballantry Homes and Losani Homes — plans to build 218 detached homes and townhouses on the site, which had previously been farmland.
What lead to the current dispute?
The McKenzie Meadows subdivision would be the first phase of a much larger housing development in the area that would extend to the border of Six Nations of the Grand River, the biggest First Nations reserve by population in Canada. To smooth the way for the project, the developers accommodated Six Nations elected council with $352,000 in cash and a donation of 42.3 acres of land. In exchange, elected council promised not to support any protests that might arise. The development did not receive much public support at meetings held on Six Nations prior to construction starting, and the Haudenosaunee Confederacy Chiefs Council says it was not consulted.
A group from Six Nations occupied the site on July 19, saying the land was unceded Haudenosaunee territory. They renamed it 1492 Land Back Lane, a reference to the year explorer Christopher Columbus landed in the Americas, ushering in the era of European colonization. Work to prepare the site for construction of the subdivision has been suspended ever since. The group now on the land has put up a building and other structures while camping out in tents.
Who is occupying/defending this land?
A group from Six Nations, along with allies from other First Nations and non-Indigenous supporters, is defending the land against what they see as illegal development. Land defenders say that despite Six Nations’ growing population, private housing developments encircling the reserve would make it impossible for their territory to grow in the same way that Caledonia and other municipalities are able to. In the eyes of the legal system, the land defenders are trespassing on private land and should be removed so that construction can restart.
Who owns the land?
That’s the multimillion-dollar question. Foxgate and Haldimand County say the issue of ownership was settled in 1853 when a group of Confederacy chiefs surrendered Haudenosaunee title to the land, which was subsequently sold privately through the years until it was purchased by the real estate consortium in 2015. The land defenders say the Haudenosaunee were defrauded of the McKenzie Road land and most of the original Haldimand Tract — 10 kilometres on either side of the full length of the Grand River, given to Six Nations by the British in 1784 in gratitude for their allegiance during the American Revolution — through unscrupulous sales, leases and surrenders.
Is this land under claim?
Depends who you ask. Foxgate and the county point out that while Six Nations elected council has an ongoing claim seeking an accounting of what happened to the Haldimand Tract land, no formal claim has ever been filed for the McKenzie lands specifically. The land defenders refute this, saying the Haudenosaunee Confederacy chiefs have claimed the land since the 19th century and that no development should be permitted while its ownership is in dispute.
What has happened in court?
Foxgate and Haldimand County have successfully petitioned Superior Court Justice R. John Harper to issue injunctions that ban anyone not authorized by the developers from being on the site, and forbid any barricades to be put up on Haldimand roadways. Those court orders were issued as temporary injunctions, extended, and finally made permanent on Oct. 22, which in effect means the court has ruled against the land defenders and in favour of the developers’ claim to the land. As the only named party to the injunctions, Skyler Williams — who the judge decreed to be the leader of 1492 Land Back Lane, while he calls himself the spokesperson — is on the hook for $20 million in damages, plus $144,000 in legal costs. Williams argued that a court located on the Haldimand Tract could not render an unbiased decision about the ownership of disputed lands, and that nation-to-nation negotiations with the Crown are the appropriate mechanism to resolve the dispute. He was eventually disqualified from participating in the legal process because he continued to disobey the judge’s order to leave the land.
What are the police doing about it?
Once the land defenders indicated they would not voluntarily leave the land regardless of the court order, it was up to the Ontario Provincial Police to enforce the injunction. The OPP operate under a framework for Indigenous policing that came out of the Ipperwash Inquiry. That framework includes the use of liaison officers to establish dialogue, as police did in this case. On Aug. 5, five days after the first injunction was served, the police moved in on the camp, clearing it by force and arresting nine land defenders. The site was reoccupied by nightfall, and in response to the police action, Land Back supporters lit tires on fire along Argyle Street in Caledonia and on the Highway 6 bypass, causing the OPP to close both roads. The CN rail line was also blocked. Looking to avoid another confrontation in Caledonia and potential uprisings across the country by Indigenous groups acting in solidarity with the Six Nations land defenders, the OPP began to enforce the injunctions by arresting people away from the site.
How many people have been arrested? Who are they?
The OPP have arrested almost three dozen people for allegedly disobeying the court order by being on the McKenzie Meadows land. Some of the accused have been musicians who have performed at music concerts held at the site, including Hamilton’s Tom Wilson. Others have been picked up for attending those concerts or dropping off food and other supplies. A pair of Indigenous journalists have been arrested. A senior OPP official told the court that the police service has a list of people still to arrest. There is an arrest warrant out for Skyler Williams, whose wife, Tahnee, has already been arrested for an alleged breach of the injunction. In most cases, those arrested are charged with disobeying a court order and mischief, which in this case refers to actions that prevent Foxgate from accessing its property.
What do the developers say?
Representatives from Foxgate say the company covered all its bases before proceeding with the build, including consulting with Six Nations and doing a provincial title search to ensure the land could be legally purchased. The company notes that it had no legal obligation to accommodate Six Nations elected council but did so in consideration of the history of land disputes in the area. This accommodation also won the council’s tacit support for the development.
What are politicians saying?
The occupation of McKenzie Meadows has drawn the ire of Haldimand-Norfolk MPP Toby Barrett and Haldimand Mayor Ken Hewitt, who say the builders are entitled to build on land that was legally surrendered years ago and is not part of any land claim proceedings. Hewitt shared his frustration at the slow pace of the land claims court process, as it leaves the community open to conflict in the meantime. The mayor has urged the OPP to enforce the injunction and has applauded the ongoing arrests. Haldimand’s police services board took a hard line against the occupation, likening the land defenders to domestic terrorists.
Elected Six Nations Chief Mark Hill has backtracked somewhat on his council’s initial support, saying council would rethink such decisions in future. He decried the court decision to make the injunctions permanent as evidence of systemic racism in the legal system. The Confederacy has publicly endorsed the occupation, while Premier Doug Ford has condemned it, saying the occupiers are only frustrating the efforts of Six Nations elected leadership.
Missing from the conversation thus far has been the federal government. Carolyn Bennett and Marc Miller, the federal ministers responsible for Indigenous affairs, have expressed a willingness to meet with stakeholders, but there has been no public progress toward such a meeting.
Why don’t the land defenders leave the disputed land and let the legal process play out?
Abandoning the site and allowing the development to proceed would effectively kill any hopes the land defenders have of adding this area and neighbouring territory to the reserve in the future, they say. While land owned by third parties is not under consideration as part of specific land claims — such as the one heading to court regarding the Haldimand Tract — there is precedent for the courts awarding First Nations cash to settle land claims. Band councils can use that money to buy Crown land and assimilate it into the reserve. In this case, if the government were to buy out Foxgate and assume ownership of the McKenzie land, Six Nations could conceivably one day buy it back. However, that would take time. Six Nations elected council filed its request for an accounting of the Haldimand Tract lands in 1995. The court hearings are scheduled to begin in November 2022, and with appeals the case could take years to resolve. In the meantime, the land defenders plan to hold their ground and prevent houses from being built.
Why did the Land Back group rip up the roads?
A few hours after the injunctions were made permanent on Oct. 22, OPP officers clashed with land defenders near the back entrance to the Land Back camp, located at Argyle Street and Sixth Line. Accounts of the sequence of events differ, but the skirmish resulted in police firing rubber bullets and deploying a Taser against the land defenders, who threw rocks and damaged police cruisers. In retaliation for what they described as police provocation, barricades went up on Argyle and Highway 6. The land defenders used heavy machinery to tear up a section of Argyle Street and dig a trench along McKenzie Road outside the front entrance of McKenzie Meadows. Police closed McKenzie, Argyle and Highway 6, and the CN Rail line running through the territory was also vandalized.
What happens next?
The land defenders have no plans to leave despite the court ordering them to do so, and there has been no movement on the political front. So what happens next is in large part up to the OPP, who remain tasked with enforcing the court orders. The police could mount a large-scale eviction of the land defenders, but top brass is wary of that option since it could spark violence at the site and disruptive retaliatory actions (such as blocked highways and rail lines) across the country. While they consider that option, the OPP are likely to continue arresting land defenders and their allies one at a time, away from the site.
What happened in the past, with Douglas Creek Estates?
History may offer a clue as to a potential outcome for this dispute. In 2006, land defenders took over the planned Douglas Creek Estates subdivision on Argyle Street in Caledonia, which borders the northern end of the McKenzie lands. After a fractious and sometimes violent occupation, the provincial government led by Premier Dalton McGuinty purchased the DCE land from the developers and essentially surrendered it to the group from Six Nations that still occupies it today. The development was scrapped and the territory became Crown land. While there is no indication that the Ford or Trudeau governments plan to buy out Foxgate and turn the wide swath of property along McKenzie into Crown land, it is one possible solution to this standoff.
J.P. Antonacci, Local Journalism Initiative Reporter, The Hamilton Spectator