On July 31, 2020, an interlocutory injunction was placed on the Haudenosaunee Land Defenders at 1492 Land Back Lane, a site which is the target of a new housing development by Foxgate Developments Inc. On August 7, the injunction was made permanent.
Injunction: An order of the court preventing someone from doing something. Interlocutory Injunction: An interlocutory injunction is usually enforceable until the conclusion of the trial or some other determination of the action.
In Short: 1492 Land Back Lane is found within the Haldimand Tract, a Haudenosaunee territory that stretches along Southern Ontario.
- The Land Defenders began the demonstration on July 19, 2020.
- A total of 26 people have been arrested in relation to 1492 Land Back Lane.
On August 5, 2020, the Ontario Provincial Police (OPP) enforced the injunction and attacked the Land Defenders with tasers and rubber bullets. Locals report that the OPP is tracking license plates and is arresting anyone who enters the territory.
- One woman noted on social media that her husband was arrested and charged with criminal mischief for attending a concert and lacrosse game at the site, against the orders of the injunction. “My daughter was in the car during this and is utterly traumatized,” she reported.
On August 24, Haudenosaunee women made a concerned statement asserting their sovereignty over the land. They also denounced the actions of the police and the judiciary in reinforcing colonial oppression.
In 2016, the Six Nations of the Grand River’s Elected Council was given 42.3 acres of land to accommodate a development. In 2019, they were given $325,000 which was put into a land banking account.
Demonstrators say the elected council only represents a fraction of the more than 27,000 people who live on Six Nations and that not enough consultation was done.
- Some consider the Elected Council to be “administrative minions” that do not have sufficient power to exercise meaningful change in how the colonial government suppresses First Nations’ sovereign freedoms.
How the Law Works Against First Nations
The crisis at 1492 Land Back Lane illustrates two ways in which First Nations are trampled by civil procedure in the common law.
First, corporations can weaponize elements of legal standards of proof to obtain favourable results. For instance, they will often rely on interlocutory injunctions, as in the case here. The standard of proof is simply show that a demonstrator is causing “irreparable harm” and relies on a “balance of convenience” being disrupted. Obtaining an interlocutory injunction is easy because there’s no need to provide a justification analysis as would be the case in an actual trial. The corporation does not even need to show a full cause of action.
Having obtained an interlocutory injunction, the police will quickly become involved, and the pressure of force is often enough to dispel land defenders, eliminating the need for a permanent injunction.
- 81% of injunctions against First Nations by corporations are granted, but 81% of injunctions against corporations by First Nations are denied.
Secondly, Superior Court Justice John Harper prevented a Haudenosaunee woman from speaking during the injunction hearings because she did not provide a notice in writing. The opposing counsel had agreed to allow the woman to speak. Justice Harper claimed that the requirement to provide notice was out of “fairness” for the opposition counsel. Predictably, the OPP Commissioner was permitted to speak at the hearing after the woman had left.
Further, the development ignores the Haldimand Proclamation, a decree made by the British granting the area to the Haudenosaunee for their participation during the American Revolution. Yet even with an explicit treaty, Indigenous rights to the land are often ignored in favour of commercial development.
For the First Nations that have their land stripped, initiating a constitutional application to correct the unlawful activity through the Charter of Rights and Freedoms should be unnecessary because of their sovereignty over the land and supremacy of their own system of law.
- But even if they wanted to take this route, applications for title of the land are extremely expensive and could take years.
Ministers of the Federal Government have committed to engage in negotiations with the Land Defenders. Many demonstrators believe that the judiciary are not a legitimate decision-maker in this situation as they are unequipped to deal with other sovereign nations, a position which the Haudenosaunee have asserted in their many statements.
A History of Land Crisis
The injunctions at 1492 Land Back Lanes are not a rare occurrence. Earlier this year, injunctions were placed on the Wet’suwet’en First Nation who protested the development of a pipeline on unceded territory. Historically, Canada has faced a series of similar crises, such as the Oka Crisis, the Ipperwash Crisis and the Grand River Land dispute.
The horrific trend of murdering Indigenous Peoples for the sake of commercial developments is accelerating worldwide. In 2019, Global Witness reported that 212 land defenders were killed worldwide, half of which related to the extractive industry.
The Big Picture: Canada has been ostensibly concerned with reconciliation with its colonial history and with the damage caused to First Nations for centuries. Nevertheless, the demands and needs of the sovereign First Nations are repeatedly disrespected, and past agreements, completely ignored.
You can support the 1492 Land Back Lane Legal Defence Fund here. You can also e-transfer to a separate survival fund at email@example.com. Funds donated here will go to ongoing costs and supplies.
- The Challenges of Learning & Teaching an Indigenous Language in 2020
- The Systematic Exclusion of First Nations People from Federal Welfare