Court of Appeal examines legal process leading to injunctions related to the occupation of Six Nations lands – Hamilton
A panel of judges decides whether or not the spokesperson for a Six Nations land occupation had a fair chance in Superior Court proceedings which resulted in a pair of standing injunctions in Caledonia a year.
On Tuesday, the Ontario Court of Appeal heard from lawyers on both sides of the legal battle over land that has been dubbed 1492 Land Back Lane by defenders of the Haudenosaunee lands.
Last October, Justice RJ Harper made two injunctions permanent – one banning people from entering a construction site on McKenzie Road where a developer had planned to build more than 200 homes, and another banning the establishment of dams lorry drivers on Haldimand County roads.
The judge also ordered Land Back Lane spokesman Skyler Williams – the only defendant named in the case – to pay the legal bills for the litigation.
Williams has appealed the ruling, which is why the case is back in court.
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Barry Yellin of Ross and McBride LLP, who represents Williams on the appeal, said the court process was “procedurally unfair” and Williams should not have been banned from the proceedings.
“There was no attempt at reconciliation in the process that was before this tribunal.”
Williams had his comments struck out of the record when he admitted he would not obey court orders, resulting in him being found in contempt.
Yellin said this meant Williams hadn’t had a chance to defend his position that the case was about Indigenous land rights.
“The estrangement of Indigenous peoples from the Canadian justice system is something the court must consider in the context of the rule of law itself. This estrangement was further manifested by the removal of the pleadings and the removal of Mr. Williams from the court.
Yellin said the judge could have had a ‘amicus curiae“-” friend of the court “in Latin – act as an impartial party to the court to provide context to the constitutional issues reflected in Williams’ position as an indigenous person without legal representation.
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“The decision to grant a permanent injunction was taken without any indigenous voice in the proceedings,” Yellin said.
“Grouped together in the appellant’s defense, the notice of constitutional question and the third party third party were points of law, in fact, which required judicial review. Amicus, in my opinion, would have ensured that these points could have been taken into account before the determination of the final order. “
Foxgate Developments canceled the McKenzie Meadows subdivision earlier this year, citing continued land occupation as the main reason for the project cancellation.
Paul DeMelo of Kagan Shastri LLP, representing Foxgate before the Court of Appeal, argued that Justice Harper’s ruling should stand, saying Williams had engaged in an “abuse of process” by admitting that he would continue to disobey court orders.
“[Justice Harper] gave Mr. Williams ample opportunity to participate, ”said DeMelo. “His honor unequivocally informed Mr. Williams that he could participate fully in the proceedings if he were to cleanse himself of contempt.”
He said that disagreeing with a court order does not give someone the right to disobey that court order and that Williams had an opportunity to make his position heard if he did not. chosen in contempt of court.
“If a person blatantly declares that he will not comply with a court order that is not in his best interests, that person should not have the opportunity to seek redress from the court as well.”
Land Back Lane spokesperson ordered to pay legal bills for land dispute in Caledonia
More than a year after the occupation began, the land defenders remain at the McKenzie Road site, claiming the land is unceded Haudenosaunee territory.
It’s unclear when the panel of judges will return with their decision, as they have indicated they will reserve it at a later date.
If the appeal is allowed, the case would return to Superior Court before a different judge and Williams’ arguments would be restored.
Judge David Doherty stressed that the issues raised by Williams are “on the face of it, important issues” and should not disappear from the discussion with him.
“May be friend should have been appointed at this point to help the judge understand whether Mr Williams’ dismissal might also close the door on some very important arguments.
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