Say No! to Criminalization of Six
Nations Land Defenders
Court Injunctions Will Not Deter the Haudenosaunee from Affirming Their Sovereignty
- Philip Fernandez -
Land defenders from the Six Nations of the Grand
River (Haudenosaunee) in Caledonia, about 100
kilometres south west of Toronto, stopped
construction on the McKenzie Meadows housing
development on July 19, 2020 and reclaimed the
land as unceded Haudenosaunee territory. They
renamed it 1492 Land Back Lane and have remained
on the land to assert their sovereignty despite
escalating Canadian state violence.
The land defenders have been occupying the
property to stop a land development for which
there is no free, prior and informed consent from
the Haudenosaunee. The occupiers believe that were
the developer to proceed with the development that
would effectively destroy the ability to resolve
the underlying dispute over the lands. Foxgate
Development Inc. had originally applied for an
injunction at the Ontario Superior Court ordering
that the land defenders be removed. On July 31, an
interim injunction was granted by Justice John R.
Harper. On August 25 the injunction was upgraded
from temporary to interlocutory, a stronger type,
and on October 22 the injunction was made
permanent. Justice Harper granted the injunction
without hearing any evidence from the
Haudenosaunee with respect to their land claim.
Reporting on the October 22 hearing for APTN
News, Brett Forester explained that the person the
court had named the sole leader of the occupation
and the defendant in the case, Skyler Williams,
attempted to put forward a constitutional question
and asked that the provincial and federal Crown be
named as third parties to the hearing.
Williams filed an affidavit on October 20 in
which he argued that the Crown, not him, should be
liable for damages for failing in their duty to
consult with the community regarding development
of the disputed land. The affidavit said, "The
claim is that the Crown is liable for those and
any other damages due to their negligence in
failing to ensure that the Duty to Consult was
fulfilled on lands known to them to be
legitimately contested by the people of Six
Nations."
The judge refused to hear the argument, finding
Williams in contempt and therefore not "allowed to
participate." He said "Any material pleadings that
he has filed -- which I have not seen, but I
understand that he's filing a statement of defence
and a counter claim -- that they will be struck."
Earlier, when deciding on the interlocutory
injunction, Justice Harper had used a three part
test -- called the RJR MacDonald test. After
considering whether Foxgate's case had merit, he
decided whether the harm caused by not granting
the injunction would be irreparable. He ruled that
these standards were met and considered who would
be harmed the most if the injunction was granted
-- a consideration called the balance of
convenience. One would think that this would lead
to a determination in favour of the Indigenous
people, those who have a land claim, as developing
the land would effectively eliminate their just
claim. However, as a 2019 study by Indigenous
thinktank the Yellowhead Institute highlights, 81
per cent of injunctions sought by corporations and
private interests against Indigenous people
defending land claims are granted by Canadian
courts, as was the case with the injunctions
granted to Coastal GasLink against the
Wet'suwet'en in northern BC, for example.
October 25, 2020. Delegation from the Ontario
Federation of Labour and the Canadian Union of
Public Employees-Ontario join the land defenders
in Caledonia.
According to a report in the Hamilton
Spectator on October 29, the McKenzie
Meadows subdivision was to be the "first phase of
a much bigger housing development that would
extend to the border of the Six Nations of the
Grand River, the biggest First Nations reserve by
population in Canada." Despite attempts by Foxgate
to win support for their development it is opposed
by the vast majority of the people living on Six
Nations territory. On August 15 the hereditary
chiefs stated: "The Haudenosaunee Confederacy
Chiefs Council is opposed to this development and
as the holder of collective rights for the
Haudenosaunee people has not granted any type of
consent which would allow this development to
proceed."
The just struggle of the Haudenosaunee land
defenders has been met by state violence of the
police, courts and government. To date, 33
Haudenosaunee and their allies have been arrested
and criminally charged including on August 5 when
more than 100 fully armed OPP invaded sovereign
Haudenosaunee territory, using tasers and rubber
bullets against the land occupiers. Reinforcements
from the community forced the OPP to retreat.
Those arrested appeared in court on November 25 to
face criminal charges but their cases have been
postponed to January 12 at the request of the
defence to allow more time for consultation and
preparation with the accused.
Premier
Doug Ford criminalized the land defenders during an August 6 press
conference following the OPP paramilitary assault against the land
defenders when he said: "You know, you just can't go in and just take
over people's future homes, it's wrong. And then, when the police
come... they get an outhouse, toss it over from a bridge onto a police
car, then they start throwing rocks at the police car! Like, enough is
enough ... people have to obey the rules. I don't care where you come
from, you know, what your race, creed, colour, whatever, we have one
country, one rule, and that is it!" For its part, the Trudeau
government has taken no steps to intervene to assist the Six Nations
nor to engage in meaningful discussions to come to a peaceful
resolution of this struggle.
The Ontario Superior Court hearing regarding
Foxgate's application for a permanent injunction
against the land defenders began in Cayuga,
Ontario, on October 9. At the hearing, Skyler
Williams, who, on the basis of his Facebook
postings, was declared by the court to be the
leader of the land defenders, asserted in an
affidavit: "I am a Haudenosaunee man who does not
belong before this colonial court. As a Mohawk of
the Wolf Clan and of the Haudenosaunee
Confederacy... I believe and follow the Great Law
of Peace." When, in the course of the hearing,
Williams agreed that he had indeed defied the
injunction, presiding Judge Harper was "astounded"
and arrogantly lectured Williams, saying: "It
is not an option to take the law into your own
hands, to occupy others' lands."
"Others," notably the Canadian state and private
interests, in fact have been stealing and
occupying Haudenosaunee lands for almost 250
years. The Haldimand Treaty of 1784 granted the
Haudenosaunee 950,000 acres "six miles deep" on
both sides of the Grand River for their use and
the use of their descendants in perpetuity. This
was to compensate the Six Nations for the loss of
their traditional territories, a consequence of
their fighting as allies on the losing British
side in the American Revolutionary War. This land
has since been reduced to less than 47,000 acres
today (see map below).
There are currently more than 30 outstanding land
claims with more on the horizon as the
Haudenosaunee continue their historical research
on lands they lost through government land-grabs
and other illegal means. From the beginning, the
Canadian state, as representative of the Crown,
has refused to prohibit the building of towns and
cities on these lands without the approval of the
Haudenosaunee.
In 2006, the Haudenosaunee successfully reclaimed
another private housing project, the Douglas Creek
Estates (DCE) subdivision, renaming it
Kanonhstaton, Mohawk for "The Protected Place."
Canadians stood shoulder to shoulder with the
Haudenosaunee land defenders in 2006, as they do
again today. The camp established by the
Haudenosaunee land defenders today is across the
road from Kanonhstaton.
The violence and perfidy of the racist Canadian
state against the Haudenosaunee is longstanding
and includes the forcible removal of the
Confederacy Council from its offices in 1924 by
the RCMP, shortly after which government officials
set up a band council under the Indian Act in an
election in which only a small number of people
participated.
In a post on his Facebook page on November 25,
the 130th day of the land claims fight, Skyler
Williams noted: "Despite the number of days we are
just as determined as ever to keep moving forward.
Keep on building and growing. So much has been
stolen. This is the line too far. Our community
will not be hemmed in. We will not stand by and
continue to watch as our lands are stolen or let
our nations be divided. Federal and provincial
governments still after all this, continue to drag
their feet. Leaving this in the hands of the OPP
is absolutely unacceptable. We have been ready to
start this dialogue. There is no reason this
didn't start months ago. Yet here we are still
waiting with the threat of the OPP ever present."
Everyone is invited to visit the land defenders
at their camp and even stay overnight to show
their support. Those who can are urged to
contribute to the 1492 Land Back legal fund here. Contributions can also be made to the functioning
of the land defenders' camp with an e-transfer to
landback6nations@gmail.com. Already more than
4,500 people across Turtle Island have donated
close to $360,000 in a campaign to raise half-a-million dollars for legal defence, a measure of
the level of support for the just stand of the
Haudenosaunee.
October 25, 2020. Banner hangs from overpass on
Highway 403 in Hamilton.
Hands Off the Haudenosaunee!
Uphold Indigenous Sovereignty!
This article was published in
Volume 50 Number 46 - November 28,
2020
Article Link:
Say : Court Injunctions Will Not Deter the Haudenosaunee from Affirming Their Sovereignty - Philip Fernandez
Website: www.cpcml.ca
Email: editor@cpcml.ca
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