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EXPLANATION of Oct 22 Injunction Hearing 1492LandBackLane - 1492 Windsor Law Coalition

Updated: Dec 22, 2020

#1492WindsorLawCoalition's Explanation of Why the October 22 court proceeding

is problematic.

Permanent Injunction Hearing: Foxgate Developments v Doe et al.

The Land Defenders were Denied Fair Process

Just like in Henco, the land defenders in this case (including Mr. Williams) were not given fair opportunity to address their charges NOR to participate in the action they have been named in.

The ultimatum to vacate the land or be denied the ability to participate is constitutionally flawed; everyone has the right to make full answer and defence. This was denied to Mr. Williams by requiring him to do the impossible (control other people's actions).

Justice Harper displayed extreme bias

Not only did Justice Harper openly admit to not reading any of Mr. Williams submitted materials (including his statement of defense which outlines his position), throughout the trial he silenced Mr. Williams and did not allow him space or time to speak.

Justice Harper consistently interrupted Mr. Williams and did not let Mr. Williams interrupt to correct facts. This breaches one of the fundamental principles of natural justice: Audi alteram partem, which means that each side must be given a fair chance to be heard. However, Justice Harper allowed counsel for Foxgate and Haldimand to make many interruptions as well as allowed counsel to make their full statement uninterrupted.

This clearly displays favouritism towards counsel for Foxgate and Haldimand. For example:

Justice Harper displayed abuse of power

As on Oct 9, Justice Harper began court by issuing a lengthy warning to all those watching on Zoom that they are not allowed to record the proceedings under penalty of law. On Oct 22, he further added lengthy quotations of former Chief Justice of the Supreme Court McLaughlin to back up his finding of Mr. Williams' abuse of process. A simple caution would have sufficed.

Justice Harper also displayed abuse of power by forcing Mr. Williams to be muted on Zoom, an act that unconstitutional as the courtroom equivalent would be to physically gag him, which (one would hope) would never be acceptable to do in a court of law.

Counsel for Foxgate relied on irrelevant case law

In Canada's common-law system, the decisions of past cases that are akin to the outcome your client desires can be very useful in convincing the judge to agree with that outcome. However, the facts of the previous cases must be virtually identical.

Foxgate relied on two past injunction cases, one from 1991 and one from 2004, but these cases had absolutely nothing to do with injunctions interacting with Indigenous land claims. Mr. William's brought this to the court's attention, saying: "Those cases are issues of a private business, not a land issue with hundreds of years of atrocities committed against them. Comparing 500 years of hate and oppression and racism to a private business is, on its face, inflammatory for Indigenous people across the country."

5. Justice Harper and counsel for both Foxgate and Haldimand displayed a fundamental and purposeful ignorance and malice towards Mr. Williams and Haudenosaunee people

Justice Harper, counsel for Foxgate and for Haldimand consistently referred to the land defenders as "occupying other's lands", "trespassing", and "engaging in self-help measures," seeming to completely miss the irony of accusing Indigenous people of doing these things.

In 2020, there is no excuse to claim ignorance of the history of this land and of Canada's abhorrent treatment of Indigenous people since first contact in 1492. Justice Harper references the fact that "the abuse that has been put upon the aboriginal community" must be acknowledged by "society and courts", but even a plain understanding indicates that acknowledgement is not enough.

Notably, the Truth and Reconciliation Commission's Final Report has been public since 2015. It includes specific Calls to Action (25-44, 50-55) for the legal system. There is also a significant body of Supreme Court of Canada case law post 2015 that enshrine the importance of reconciliation, and that courts must take action to ensure reconciliation is always being pursued. Acknowledgement does not accomplish this.

Next steps:

Mr. Williams will be appealing this case. In the mean time, there is much work to be done to continue supporting the land defenders and Land Back movements across Turtle Island. Check out our toolkit in our bio for ways you can continue helping.

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