This Thursday, October 22nd, an Ontario Superior Court Justice intends to decide on whether to make an injunction to remove 1492 Land Back Lane land defenders permanent, but his Honourable R. John Harper may choose not to consider any evidence that Haudenosaunee people have a viable land claim.
Justice Harper had said on August 25th that since 1492 Land Back Lane land defenders ”are content to raise any of their concerns in the media as opposed to the court”, then he cannot consider evidence he doesn’t have. He did consider social media evidence that he agreed to use to name Skyler Williams as a defendant based on Facebook posts.
On the evening of July 19th land defenders moved onto unceded Haudenosaunee lands that were close to being heavily developed despite no free, prior and informed consent being given from Indigenous people the land defenders claimed. They believed building Mackenzie Meadows – the name the developer Foxgate gave the lands – would effectively destroy the ability to resolve the underlying dispute over these contested lands.
On July 31st the developer asked for an injunction ordering the land defenders to be removed and it was granted. On August 25th the injunction was upgraded from temporary to interlocutory – a stronger type of injunction. This Thursday the court will make a ruling on whether to make the injunction to remove the land defenders permanent.
The Trail of Injunction Tiers
Over the course of only a few weeks Justice Harper upgraded an injunction to remove the 1492 Land Back Lane land defenders from temporary to interlocutory, this week His Honour intends to decide whether to make the injunction permanent.
A temporary injunction is the most preliminary level of an injunction. An interlocutory injunction is a higher standard – the standard used by Coastal Gaslink to try to remove the Wet’suwet’en land defenders from their traditional territories earlier this year. A permanent injunction is effectively a final ruling on the underlying issue.
When deciding on the interlocutory injunction, Justice Harper used a three part test – called the RJR MacDonald test. After considering whether the applicant’s case – in this case Foxgate development – has merit, he then decided if the harm caused by not granting the injunction would be irreparable. He ruled that these standards were met and lastly Justice Harper considered who granting the injunction would harm the most – this consideration is called the balance of convenience.
This might seem to be a determination in favour of any underlying Indigenous land claim. If an Indigenous group has a land claim then developing the land would effectively eliminate the very land being disputed. The Yellowhead Institute – an Indigenous think tank – has shown that 81% of injunctions sought by a corporation against an Indigenous land claim are granted though.
The legal reasoning that Justice Harper is using to soften the balance of convenience conditions in favour of the developer is based on the comments of Justice Robert J. Sharpe in a 2019 Canadian Law book:
“Property rights are sacrosanct…the balance of convenience and other matters may have to take second place to the sacrosanctity of property rights in matters of trespass.”
Indigenous rights are protected by the Canadian Constitution. Canadian property rights are not protected by the Constitution of Canada, but they are considered so central to the Canadian sense of identity and wealth that they experience strong protection.
This is not a precedent being set. The Canadian sacrosanctity of property rights has been given such weight in injunctive relief hearings that it regularly outweighs the other considerations of the tripartite interlocutory injunctive relief test. The standard for a permanent injunction is different.
Skyler Williams is Facing a Morten’s Fork in the Road
A permanent injunction – the step being ruled on this Thursday – is effectively the court determining if the land belongs to the developer.
Justice Harper named Skyler Williams as the sole leader of the 1492 Land Back Lane defense – to the objection of Mr. Williams – and ordered him to have the land vacated. Justice Harper will not hear any underlying constitutional arguments unless the disputed property is vacated by the Haudenosaunee people and their supporters he stated in court.
Land defenders deciding to go or stay may have the same outcome. If Skyler Williams even had the power to get the property vacated the land development would resume upon their exit. If land defenders don’t leave then Justice Harper will not consider the underlying argument and issue a permanent order to allow the development to continue.
If the courts were to fully consider the underlying constitutional arguments and the associated land claim there is still not a clear path between court victories and real world results.
Court, Conflict and “Reconciliation”
This year high profile Indigenous rights cases stemming from a historical Sipekne’katik court victory and a historical Wet’suwet’en court victory have been in the news for not having those court rulings result in legislation or policy that implements the rights affirmed in the cases. The Mi’kmaw fishers and the Wet’suwet’en people engaged in the formal court processes, achieved some level of success in the court system, only to still have their rights effectively thwarted.
British Columbia Supreme Court Justice Marguerite Church granted Coastal Gaslink Energy a temporary injunction to remove Wet’suwet’en land defenders in 2018. After six months of consideration Her Honour ruled in 2019 to upgrade the injunction from interim to interlocutory. Justice Church gave a narrow consideration to Indigenous law, and specifically said a blockade was not a traditional practice.
The treaty rights of Mi’kmaw fishers were affirmed by the Supreme Court of Canada in 1999. Mi’kmaw fishers successfully used the courts to show that they had an inherent right to support themselves through fishing. The court granted the right but stressed the importance of negotiating, not adjudicating a solution.
The Department of Fisheries and Oceans was given the power by the courts to restrict the level of fishing. They have used that power to restrict Indigenous fishing without defining the limits in a way that the Mi’kmaw fishers believe respects their inherent rights . Twenty one years after the court ruling the Sipekne’katik government started to regulate their own system. The violent pushback by non-Indigenous fishers has bitterly aggravated the results of the DFO inaction and exposed the threat of not implementing policies that reflect court rulings.
There are key differences between the fight for Indigenous rights by the Wet’suwet’en, the Sipekne’katik, and these Haudenosaunee land defenders. The commonality may be that land and rights on paper are much harder to implement in actual practice.
What About the Duty to Consult?
In 2004 the Supreme Court of Canada established that the Crown has a duty to consult in the Haida Nation v BC case. Justice Harper referenced this case in his ruling to change the injunction from temporary to interlocutory: “Knowledge of a credible but unproven claim suffices to trigger a duty to consult and accommodate. The content of the duty, however, varies with the circumstances.”
Justice Harper then went on to decide in this case that “it is not possible to differentiate between tenuous claims, claims possessing a strong prima facie case and established claims when those resorting to self-help refuse to engage in the court process.”
In the interlocutory injunction ruling His Honour establishes a timeline starting with the previous purchase of the lands in 2003 and ending with the current purchase of 176 homes. Justice Harper illustrates that it wasn’t until the end of the process that these land defenders “initiate their resort to self-help and associated violence”.
Notwithstanding the complexity of Justice Harper characterizing the interaction between the police and Indigenous people as land defender violence there have been documented public consultations. While the consultations were sparsely attended, the majority of Six Nations people attending them opposed any form of development on this property.
Fair consultation on the Haldimand Tract is an area where the law, the history of Six Nations, and Nation to Nation relationships wade into complex territory. The Six Nations band council and the Haudenosaunee Confederacy traditional leadership have been firm that they consider the way the land was transferred from Haudensoaunee people to non-Indigenous people to be completely unfair.
1492 Land Back Lane is across the street from Kanonhstaton, an area that in 2006 was reclaimed from developers trying to add an urban intense development on the doorsteps of the Six Nations reserve. The political dynamics have shifted since the 2006 reclamation, but the unresolved underlying Six Nations claim to justice and desire for land back has not.
On Thursday the Honourable R. John Harper is likely to make a final ruling, what is unlikely is that this will be the final chapter in the legal story of the reclamation fight for 1492 Land Back Lane.
BONUS UPDATE: One Dish, One Mic will be providing updates on Thursday. Karl Dockstader’s counsel has had the condition forbidding him from attending 1492 Land Back Lane varied and he will file at least one report from the property. This will be his first in person report since August 29th.