Ontario’s top court hears 1492 Land Back Lane appeal

·4 min read

Did Skyler Williams get a fair shake in court?

That was the legal question debated at Ontario Court of Appeal in Toronto over the course of a three-hour hearing on Tuesday.

Williams is the spokesperson for 1492 Land Back Lane, the Indigenous-led occupation of a since-cancelled Caledonia subdivision. The Six Nations man is the only named defendant in a pair of injunctions issued by Superior Court in Cayuga that bar all road barricades in Haldimand County and limit access to the 25-acre site on McKenzie Road to those authorized by Foxgate Developments.

Williams appealed those injunctions to Ontario’s highest court last November.

A three-judge panel must now decide if Justice R. John Harper erred in dismissing Williams’s constitutional arguments regarding Indigenous rights and in disqualifying Williams from participating in legal proceedings last October during which the injunctions were made permanent.

In court last year, Williams admitted to being in contempt of the court order and told the judge he had no intention of leaving the occupied land, which land defenders claim as unceded Haudenosaunee territory.

On Tuesday, lawyer Barry Yellin of Ross and McBride LLP in Hamilton argued it was “procedurally unfair” of Harper to prevent Williams from participating in the legal process even if he was in open defiance of the court order.

The judge, Yellin said, could have asked for unbiased help in the form of an amicus curiae — Latin for “friend of the court” — to unravel the constitutional issues brought forth by “a self-represented Indigenous individual.”

“There was no attempt at reconciliation in the process that was before that court,” Yellin said.

In fact, Yellin added, Harper decided the occupation was not connected to the issue of Indigenous land claims before Williams had the chance to appear in court to argue that it was.

Yellin contended that by having Williams’s submissions struck from the record and “literally silencing him,” Harper “punished” Williams for defying the court orders.

“The appellant was not presumed innocent,” Yellin said.

“The die was cast, the appellant’s fate was sealed, and the bluntest tool was employed.”

Yellin is seeking a new hearing wherein Williams could present his case “fully and fairly.”

Representing the developers, lawyer Paul DeMelo of Kagan Shastri LLP countered that Williams was given “ample opportunity” to advise his constitutional arguments in the proper legal setting and chose not to.

Harper was “acutely aware” of the broader implications of the case, DeMelo said, and was “careful in his decisions” to address the local history of Crown-Indigenous relations.

DeMelo pointed out that Williams declined to draw on the 1492 Land Back Lane legal fund to hire a lawyer or otherwise arrange for legal counsel, despite Harper adjourning the proceedings and encouraging him to do so.

Williams did not dispute that he was in contempt of court, making Yellin’s claim of procedural unfairness moot, DeMelo added, arguing that judges have discretion to prevent someone who admits to flouting past and future decisions of the court from taking part in the legal process.

“That was in response to the court advising Mr. Williams that his continued abuse (of process) would see his pleadings struck and that he would no longer be able to participate,” DeMelo said.

“Very clearly, Mr. Williams was engaged in a process of disrespect of the court and lessening the status of the court in the mind of the public by refusing to abide by any order. I don’t know what further a judge could do in the circumstances.”

Before adjourning the hearing, Justice David Doherty commented that the constitutional issues Williams brought forth remain worthy of consideration.

“The questions he’s raised … are on their face important questions and shouldn’t disappear with Mr. Williams,” Doherty said.

Outside the courthouse, supporters rallied in support of Williams and other land defenders.

In a statement shared on social media, Williams said the case represented a broader struggle for Indigenous land rights.

“Though I am the only person named in the injunction, ‘Jane and John Doe’ includes every Indigenous person and all those allies that have stood shoulder to shoulder with us against this theft and exploitation of our lands,” he said.

Should the lower-court decision be overturned, it is unclear what would happen to the injunctions, which remain in force even though Foxgate cancelled the McKenzie build in July.

The site remains occupied.

J.P. Antonacci, Local Journalism Initiative Reporter, The Hamilton Spectator

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