Monday, 11 November 2013

"Financial Justice" - Legitimate Claims by Six Nations?

As far as I am concerned, one thorny matter can largely be dispensed with, based on the facts of the matter - most Six Nations Land Claims.  For example, the "Holmes Report" of 2009 (see here), which was outlined in detail with annotations in my earlier post, seems to be the basis by which the matter should be settled - if one is willing to focus on the "weight of evidence" - which in this case is rock solid.  The only clearly proved land claim is Number 1, "Canadian National Railway Right-of-Way, Oneida Township (CNR Settlement)".  It is the only one of the 29 claims which has been resolved, and may in fact be the only valid land claim.  The good news for Six Nations is that on 24 December 1985, 259.171 acres were added to the Reserve (no. 40) lands to settle Claim 1.  See here for a list and description of all 29 claims - each of which will now have to be reviewed in light of the "Holmes Report".

It should be noted that the "Holmes Report" has been submitted to Justice Harrison Arrell of the Ontario Superior Court in Brantford.  His recent rulings reflect the content of this document.  One can be sure that the Report has made its way to the negotiators of both the Federal and Provincial Governments.  Hence, any further attempts to make claims that are unsupported will run up against the brick wall of facts and the truth.  Both the concepts "preponderance of the evidence" and "beyond a reasonable doubt" would likely apply here.

The other broad category of claims has to do with Six Nations Financial Justice (as per the above booklet).  In my experience, the biggest festering sore for Six Nations has to do with the Grand River Navigation Company (GRNC), the investment of Six Nations monies by their three Government appointed trustees, and the possible misappropriation of Six Nations Trust Funds in relation to this Project.  As an example of the pressing concerns relating to the GRNC, the following statement in the booklet published one year after the 2006 "Caledonia crisis", speaks volumes.  In, Lynda Powless, Douglas Creek Reclamation: A Pictorial History, Ohsweken, Turtle Island News, 2006, a list of grievances is presented.  One of the conclusions arrived at by the author is that, The Crown was systematically inducing the sale of Six Nations lands without lawful surrenders and misappropriated land payments into the works of the Grand River Navigation Company (and other Government expenditures) against the constant protests of the Six Nations of the Grand River Indians (p. 32).  The bold print here is that of the present author.

Frankly, a good case could be mounted that in fact the Government, and or the trustees appointed by the Government, had botched their fiduciary responsibility in a very serious manner.

First, the entire project was touted as likely to bring large dividends, in a works that was "close to home", so the trustees sank perhaps an inordinate amount of Six Nations trust funds into the scheme - which to the trustees, and those higher ranking in the Government, was bound to bring prosperity to the Grand River Valley.

I would be the first to argue that the scheme was ill conceived.  I have canoed from the Elora Gorge to the mouth of the Grand River.  In summer, we spend almost as much time out of the canoe walking it down the River (due to its shallowness) as we do actually paddling.  The only respite from this grind are in the areas backed up by the dams in the Kitchener - Waterloo area, Brantford, Caledonia and Dunnville.  So anyone truly familiar with the River surely had trepidations about a scheme to harness the River and make it navigable from the mouth at Port Maitland, to Brantford (by then a Town).

The scheme was kick started by the dam at Dunnville and the feeder to the Welland Canal.  The River was navigable to Dunnville.  In an age where it was believed that navigation was the necessary ingredient to prosperity, the era of dam building "caught on" in Canada and the United States.  Not wanting to be left behind in some sort of backwash, some local entrepreneurs began public meetings on 15 December 1827.  The focus shifted to Brantford, where those meeting at Lovejoy's Inn decided to commission a study of the feasibility of improving the navigation along the Grand River between Brantford and Dunnville.  As a consequence, the Grand River Navigation Company came into being, and was incorporated in 1832.  There was,  however, a rather large problem.  The Province was deep in debt, and there were few sources of ready cash at the time to fund mega projects of this nature.  However a "solution" was found.  It was William Hamilton Merritt, the founder of the Welland Canal, who suggested to Lieutenant Governor Sir John Colborne that Indian funds held in England (by then a fairly considerable fund of ready cash) could be used to finance the GRNC.  It does seem that Colborne honestly believed that the Indians, then quite impoverished, would benefit from the opening up of the region, thereby increasing prosperity, and in turn increasing the value of Indian lands and so creating more wealth for the Six Nations.  It all made such good sense, but it rested on a house of cards.

For detailed information about the GRNC, see Cheryl MacDonald (Ed.), Grand Heritage: A History of Dunnville and the townships of Canborough, Dunn, Moulton, Sherbrooke and South Cayuga, Dunnville, Dunnville District Heritage Association, 1992.  The definitive study on this subject is, Bruce Hill, The Grand River Navigation Company, Brantford, Brant Historical Publications, 1994.  Unfortunately it is long out of print, and largely unavailable.

By 1833 Colborne was willing to recommend that the Six Nations take, "stock to a very large amount nearly the whole of the Charter".  Apparently he would use W.J. Kerr and Augustus Jones, both of whom had Indian wives,  to induce the Indians to "sanction the undertaking" (Johnston, p. 298).  Discussions in the Executive Council of Upper Canada in 1840 make it clear that there was absolutely no intention to fleece the Indians, rather the Executive Council actually sided with the Six Nations stating that they, never would or could have advised the investment of Indian funds in a commercial speculation ...... Yet these funds are involved to the amount of three fourths of the Stock, - the Indian Interests are not represented in the direction.  Most prominent men believed that ultimately, the affairs of the Company can thereafter be managed with an exclusive view to the interests of the Indians.  It appears that they must have had concerns, though, since the Executive Council recommended an investigation by a "disinterested Engineer" (Ibid., p. 303).

It was decided that of 8000 shares, 2000 would each be held by Merritt, David Thompson of Indiana (on the Grand River), and the Six Nations.  The other 25% would be sold to other interested parties.  It would be one thing if the Six Nations got behind the project and it could clearly be shown that they were keen to invest in this plan, but this was not the case (MacDonald, p. 277).  When Merritt and Thompson saw that the project was going sour, they were able to use their legislative influence to get the Government (Colborne) to buy out their interest in the GRNC, by using more of the Six Nations' trust fund.  However, based on the testimony of Superintendent of Indian Affairs James Winniett and others in 1842, the, sum of  38,000 [pounds] has been invested upon the Authority of Sir John Colborne in the Grand River Navigation Company, in which they hold three fourths of the Stock.  This investment, which was made by Lieutenant Governor, in the expectation that it would not only yield an early profit, but greatly enhance the value of the remainder of the Indian Lands, has proved very unfortunate.  It has absorbed all their funds, for the last Seven years, leaving no surplus for distribution in money or provisions, as formerly ...... The Indians have frequently complained of the transaction and have petitioned the Government to take the Stock off their hands (Ibid., p. 311).  Despite owning, ultimately, over 80% of the stock of the company, the Six Nations saw not one penny of a dividend for their investment (MacDonald, p. 278).

Chief John Brant and others complained directly to the Legislative Assembly about their worries that, their land would be flooded, their corn fields ruined and their fisheries destroyed (MacDonald, p. 277).  Unfortunately Brant was unable to reverse any decisions due to his untimely death of cholera in 1834, and the project began the construction phase in that year.  Dams, canals, locks and related projects were constructed, all on the cheap.  While boat traffic did increase, and trade was expanded, and some locals such as sawmill owners prospered, the toll on the environment was catastrophic.  Everything predicted by Brant occurred and eventually the infrastructure became unstable and in constant need of repairs - which the tolls could not adequately cover.  So the GRNC languished, and in 1851 hammered out an agreement with the Town of Brantford to issue debentures to keep the entire project from collapsing.  In 1854 the railway arrived in Brantford, thereby signing the death sentence for the GRNC, which was 35,000 [pounds] in debt.  In 1861 the company was acquired by the Town of Brantford.  While things looked grim for the Company, there were local men who had a particular interest in its success, and became officers a new company, the "Brantford and Hamilton Navigation Company Limited", which formed in 1872, and succeeded in obtaining grants from the Government to keep the project going.  It was a futile enterprise at this time since the railways were capable of shipping all of the goods going down the Grand River more cost effectively and efficiently.  So by the 1880s traffic ceased and the Company folded (MacDonald, pp. 278-9).

The facts are very clear here.  The funds were invested without the full knowledge of the Six Nations of the risks involved, and the degree to which they were consulted is an open question, so the evidence appears to be rather obvious that due to mismanagement by their trustees and others, they were made to pay the price - yet with absolutely no say in the matter from beginning to end.  Their protests appear to have fallen on deaf ears.  In other words, the Six Nations were ripped off in this instance and have every right to be angry and demand compensation.  The one aspect which, at least for my part, needs further investigation, is whether the Six Nations received any form of compensation prior to or after the formation of the successor company in 1872.  If the answer is in the negative, then fairness and justice would demand that an equitable settlement be reached. 

While the Statute of Limitations (see here) may legally come into play in this instance (the matter is 150 or so years in the past), this will probably not wash at Six Nations.  There are also the intangibles, for which it would be difficult to address.  The GRNC made a mess of the environment, and was a destructive force whose only benefits were commercial, with entrepeneurs benefiting the most.  The local farmers, be they Natives, Whites, or mixed, all suffered the same fate.  Law suits came from a variety of quarters. Quite by chance, while at Osgoode Hall to explore legal papers in an unrelated matter, I came across a petition from a son of one of the original Loyalist families who settled on the Grand River via the 1787 "Mohawk Deed".  He complained "bitterly" of the "depredations" of the GRNC which, due to neglect, flooded his land every spring, ruining his crops on prime river flats land, and creating a mosquito infested swamp.  There is no indication that he ever got one penny in compensation, nor did the GRNC rectify the problems. 

All along the River the scar of the old canals, locks and dams still haunt the landscape.  Although some see this as part of the history of the area (including some members of the "York Grand River Historical Society"), those of us whose ancestors only suffered from the presence of the GRNC, and in some cases were forced to leave their lands because they became virtually uninhabitable, see it all very differently.  The good news is that today there are efforts, for example by the Kinsmen and the Rotary Club, to create public walkways along the old tow path and old Highway 54.  The canal is filling in over time by the forces of nature and often farmers who find it inconvenient and still a cause of flooding (after all these years), and this deep scratch on the landscape is now a mere shadow of its former self in most places.  The land is healing.

I hope that Six Nations are given true justice here.  A full investigation needs to be completed with all sides at the negotiation table to enact what is fair and reasonable (of course this may be a sticky point).

It has just come to mind that perhaps the above injustices against Six Nations, and the more recent injustices in Haldimand County, can be resolved in one package.

I propose that the Provincial and County officials tally up the damages caused by the 2006 crisis in Caledonia.  There is the market value of the land formerly known as the Douglas Creek Estates, and to the Natives as Kanonhstaton, to factor into the equation.  Other questions will need to be answered such as, what were the costs of policing, including the staggering overtime required?  What is the assessment of the damages such as the burning of the Stirling Street Bridge, the destruction of the Hydro towers, the 24 hour security to the Hydro sub- station for 5 (or so) years, the destruction of the pavement along Argyll Street, and other related costs?  Then there are the properties that were bought out to compensate the families most directly impacted by the events of 2006.  The list is quite lengthy, but the compensation likely due to the Six Nations by virtue of the GRNC depredations will also amount to a hefty bill.  Why not call it square, with the Six Nations receiving Kanonhstaton to be included as Reserve land, and developed or not in any way that Six Nations sees fit.

Without any doubt nothing can ever be exactly equal.  What about the intangibles such as the pain and suffering of those most directly in harms way in 2006?  There is really no price (money) that can remove the nightmares - but the goal here is "peace and reconciliation".  So Kanonhstaton as compensation for the lost revenues due to the unfortunate investment in the GRNC?  Will this work?  History provides me with an answer - but I would love to be proved wrong.  Fair is fair.


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