Foxgate Developments has every right to build a subdivision on a disputed Caledonia property now known as 1492 Land Back Lane, a lawyer for the developers argued on Monday at Superior Court in Cayuga.
Paul DeMelo of Kagan Shastri LLP laid out several reasons he believes the court should grant Foxgate a permanent injunction that would order Indigenous land defenders to leave the 25-acre parcel of land on McKenzie Road. It has been occupied since July 2020.
In the first place, DeMelo told Justice Paul Sweeny, neither the elected nor hereditary leadership on Six Nations has ever come to court seeking an injunction against building on the disputed territory, which the land defenders contend is unceded Haudenosaunee territory and DeMelo says is legally owned by Foxgate.
For five years leading up to the start of construction, DeMelo said no group from Six Nations made any attempt to claim ownership of the property until 1492 Land Back Lane spokesperson Skyler Williams and others occupied the construction site in July 2020.
A permanent injunction is needed, DeMelo argued, for the land to be cleared so Foxgate can restart the project.
“Our client still has the full intention of proceeding with development of the lands,” he said, noting Foxgate has suffered “irreparable harms” and a reputational hit by having to cancel the contracts of homebuyers and suspend construction of 218 units “indefinitely.”
“Our client is the legal owner of the lands, our client has gone through the appropriate planning process … and there is no reason why they should not be able to proceed with the development of the lands,” DeMelo said.
DeMelo’s arguments did not impress Courtney Skye, a policy analyst with the Yellowhead Institute, an Indigenous-led think tank.
“Why would any community want to initiate a colonial court process to prove their land is theirs when we’ve been here forever?” said Skye, a Mohawk from Six Nations who is active with Protect the Tract, a campaign backed by the Haudenosaunee Confederacy Chiefs Council that says no development can proceed along the Haldimand Tract without the consent of the hereditary Haudenosaunee leadership.
Skye pointed to a Yellowhead study that found a sharp rise in the use of injunctions by corporations to quash Indigenous objection to development or resource extraction. The analysis found injunctions were often granted against Indigenous groups and rarely in their favour.
DeMelo also raised the Yellowhead study, but said its conclusions had no bearing on the Caledonia dispute because each case had to be considered on its individual merits.
In an interview, Skye expressed her frustrated that the provincial and federal governments continue to “play dumb” when matters such as the McKenzie land dispute come to court.
“There’s got to be a reason why these conflicts happen between communities and these so-called innocent third parties who are developing these land,” she said.
“And it’s the fact that the Crown and the province and municipalities all maintain a colonial system that’s pushing forward development (and) doesn’t take the time to meaningfully deal with Indigenous concerns and our interests in the land.”
A courtroom is the wrong place to discuss issues of land sovereignty and inherent Indigenous rights, Skye added.
The hearing continues Tuesday, with lawyers for Skyler Williams expected to present constitutional arguments and cite legal precedent to argue an injunction is not appropriate in this case.
J.P. Antonacci, Local Journalism Initiative Reporter, The Hamilton Spectator