OPP says 2nd raid on Six Nations land back camp would inflame conflict, solve nothing

Another raid on a parcel of land slated for a subdivision in Caledonia, Ont., reclaimed by Six Nations members won't solve the historical land grievance but potentially ignite an already volatile situation, according to a senior Ontario Provincial Police officer.

'The use of force . . . cannot resolve the issues underlying land disputes of this nature:' affidavit

Demonstrators have occupied the McKenzie Meadows development in Caledonia since July, renaming it '1492 Land Back Lane.' (Dan Taekema/CBC)

Another raid on a parcel of land slated for a subdivision in Caledonia, Ont., reclaimed by Six Nations members won't solve the historical land grievance but would potentially ignite an already volatile situation, according to a senior Ontario Provincial Police officer.

OPP intelligence concluded that another raid could create an explosive confrontation — similar to the events of 2006 during the Six Nations reclamation of another development in Caledonia — that could see railways, bridges and hydro stations "attacked and damaged in retaliation for the use of force by police," according to an affidavit filed by OPP West Region Regional Commander John Cain in Ontario Superior Court on Oct. 5.

The affidavit was filed ahead of Friday's hearing on a permanent injunction against the camp filed by the developer.

Launching a second operation to enforce the injunction against the camp, known as 1492 Land Back Lane, established on the planned McKenzie Meadows subdivision won't resolve the "underlying land dispute" that has already led to clashes with police, roadblocks and flaming tires, said Cain's affidavit.

Cain's affidavit said that the police are bound to enforce any injunction, but that "The OPP is concerned about the risks involved with using force to remove protesters from McKenzie Meadows and is actively involved in trying to bring about a peaceful resolution."

"The use of force, except where required to keep the peace and maintain order, is a blunt instrument that cannot resolve the issues underlying land disputes of this nature."

The affidavit said that some individuals connected to the site have "weapons" and "incendiary devices" that could be deployed in the event of another raid.

The developer, Foxgate Development Inc., a partnership between Losani Homes and Ballantry Homes, is seeking the permanent injunction, arguing that if the reclamation camp continues "it will render it impossible for [the developer] to complete" the project and deliver already "purchased homes," according to its filing.

Foxgate also argues that if it fails to build the subdivision, it will "damage" its reputation and the rights of all developers in the province.

Cain's affidavit said the 2006 conflict was resolved after Ontario stepped in to purchase the Douglas Creek Estates lands that it still holds.

"The best-case scenario is for the protesters to leave without further enforcement action and the use of force," said the affidavit.

Land part of Haldimand Tract

Members from Six Nations, about 20 kilometres south of Hamilton, took over the property in July to stop the development.

The property is part of the Haldimand Tract granted to Six Nations of the Grand River in 1784 for allying with the British during the American Revolution. The tract ran along roughly 10 kilometres on each side of the 280-km Grand River from its source in the region around Waterhen, Ont., to Lake Erie. The land being developed was originally sold by a squatter to a settler who later paid and received a land patent from the colonial administration in 1853.

Six Nations, which has the largest population of any reserve in the country, now has less than five per cent of its original land base. Today, 38 municipalities in southern Ontario sit on lost Six Nations lands.

Protesters gather outside the Superior Court in Brantford, Ont., in August when a judge ruled to extend the injunction. (Kaley M. Reuben/1492 Land Back Lane/Facebook)

The land where the McKenzie Meadows subdivision is planned sits among 28 separate claims that form part of an ongoing court case filed by Six Nations against the federal government and Ontario in 1995. The claim also seeks compensation for money owed to Six Nations from land leases and sales, now worth between $7.5 billion and $6 trillion — depending on the interest rate.

Affidavit says police pelted with rocks in August

The loss of land and funds has been a grievance from Six Nations for over 150 years and it has become a flashpoint.

Cain's affidavit included an exhibit listing 29 people who have been charged in connection to 1492 Land Back Lane between Aug. 5 and Oct. 5.

Cain's affidavit also described the events of Aug. 5 when OPP raided the camp, enforcing a temporary injunction. It led to widespread reaction — including blockades of roads, highways and a CN Rail line — that saw police pelted with rocks and bricks.

Tires and wood pallets were then set on fire, a portable bathroom was thrown from a bridge onto Highway 6, police officers were swarmed while setting up checkpoints and pushed back by rocks, said the affidavit.

A CN train was forced to stop after about 30 people and several vehicles blocked tracks, a train window was smashed, CN tracks and an electrical shed was set on fire, said the affidavit.

Cain said the OPP planned to hold the site only for a short while until the developer deployed its own security detail, which they had been advised to prepare. It appears that never happened.

Cain said the OPP continues to apply a framework created after an inquiry into the OPP shooting death of Dudley George during the Ipperwash provincial park occupation and it has worked to keep events from spiralling out of control.

Developer calls federal willingness to discuss land claims an 'affront'

While the developer pushes for a permanent injunction, the federal government continues to keep the door open for potentially restarting failed negotiations with the Six Nations elected council and its traditional government, the Haudenosaunee Confederacy Chiefs Council.

Indigenous Services Minister Marc Miller and Crown-Indigenous Relations Minister Carolyn Bennett wrote to both governments on Aug. 19 saying they were willing to "collaboratively design a process to address the unresolved land issues," according to the letter filed with the court.

The offer remains on the table and has not been rejected.

Creating a table to negotiate all claims as one connected entity was one of the key recommendations from a 2006 fact-finding report commissioned by then-Indian Affairs Minister Jim Prentice.

However, Foxgate said the attempt by the federal ministers to open up channels of dialogue was "an affront" to the company and the "200 families that have bought their future development," according to a Sept. 17 letter sent by the developer's law firm Kagan Shastri to Bennett and Miller.

"The voices of those who abide by the law and seek their remedies under the law appear to have been set aside by your ministries without a response," wrote Kagan, in the letter filed with the court.

"Any further delays in allowing my clients to proceed with their development will only worsen those damages and the damages to the Ontario families that are being impacted by these illegal protests."

The Six Nations elected council signed an agreement with the developer for 42.3 acres and $325,000 put into a land banking account as accommodation for the development.

However, the Haudenosaunee Confederacy Chiefs Council opposes the development and says it is within a designated "red zone" that should be under a construction moratorium.

A separate developer sold off the McKenzie Meadows project after the Six Nations elected council in 2013 rejected the development following community consultations.