Saturday, 2 November 2013

The Land Claims Process is a Farce and is Doomed to Failure

After being a spectator to the land claims negotiations for many years, it is abundantly clear that no matter what decisions are made, they will never be accepted unless they reflect the wishes of the Six Nations team.  Since most of the rulings by the Federal Government of late have not supported the claim filed by Six Nations researchers, it is sobering to realize that the claim will likely be submitted again, soon, under a new guise.

As a "geek" who has read all of the primary documentation relating to the matter, I cannot fathom why a Court ruling is rejected - probably because it is not the wished for outcome.  Let me be very clear.  The Surrender of 1844 and related documents are valid, there is no "iffy" aspect to them.  They in fact could not possibly be any clearer.  So why do so many at Six Nations refuse to accept the wishes of their ancestors, and fail to honour the documents that they signed?  Perhaps the answer is that there is a lot at stake.

The stakeholders in the process are the Six Nations, the people of Haldimand and Brant, the taxpayers of Canada, the Federal Government, the Provincial Government, the local Government - a cast of thousands.

The Six Nations describe the Federal land claims process here, then provide a rationale as to why they view the process as "inadequate", as seen here.  Hence if one starts with the premise that the process will not work, then via the role of expectation and self-fulfilling prophesy, it certainly won't work.

The above resources (particularly here) also detail the particulars of each of the 29 claims (see p. 8 for the list, and subsequent pages for the particulars) submitted to the Federal Government.  The bottom line is that as far as the Federal Government is concerned, one is valid and has been resolved, four are valid and require resolution, and the other 23 do not have merit.  This has not in any way stopped the Six Nations from continuing to aggitate for their position on a number of the invalidated claims.  I am not aware of any that Six Nations is willing to accept and unproved claim and then removed it from the list.  All are, in the belief of Six Nations, still open to negotiations (or in some cases, occupation).

One of the deepest most entrenched problems is that there are many who demand a voice in the negotiations, and the Government is at a loss as to who to sit across from at the table.  Anything negotiated by the Elected Band Council will probably not be accepted by the Hereditary Confederacy Council - or other factions within Six Nations.  This presents an impossible situation for the negotiators.  If the Six Nations cannot be clear about who is to represent them, then all is doomed to failure.  If for example a group such as the Mohawk Workers demand standing at the talks surrounding the "return" of the Burtch lands - then are they the legitimate voice, and will the Band as a whole stand by the proposals being made by this one group?

There have been a number of noteworthy rulings over the years, ones worth repeating here.  What follows is from Horsnell (2010, pp. 10-11), which can be found here, and reflects the bigger picture rather than small particulars:

1)  In 1959 the Ontario High Court rules that by settling on the Grand River, the Six Nations, by accepting the protection of the Crown then owed allegiance to the Crown and became subjects of the Crown.  This would abbrogate the concept of the Two Row Wampum as applied to the present day situation of the Six Nations.
2)  In 1974 the Supreme Court of Canada, concluded that the tract in question is vested in the Crown.  Once again the soverignty issue bit the dust in a high Court matter.
3)  In 2009 two reports were submitted to Justice Arrell in Brantford.  The Amicus Report concluded that, Canadian courts have held that the Haldimand Proclamation and the Simcoe Patent essentially conferred upon the Six Nations person and usufructuary rights and not a conveyance of land in the English sense.  This highlighted the permission to enter and use the land which the Crown had purchased from the Missisauga for occupation by the Six Nations.  In the Holmes Report, re the 1841 surrender, the conclusion was in entire support of the wording of the original contemporary documents.  Thus the Six Nations Chiefs agreed that the Crown could sell the Oxbow, Eagle's Nest, as well as the Martin and Johnson settlement lands, these wishes being confirmed by a series of later documents.  Furthermore, in 1848 the Chiefs agreed that the Crown could sell the Burtch tract.  All of these areas are bones of contention for present - day Six Nations people who will not accept that for example the Burtch lands were legally sold through binding documents and with the full knowledge and permission of the Chiefs of the day.  Since there has been agitation, particularly by a group known as the Mohawk Workers, for a return of the Burtch tract lands, apparently they fail to acknowledge what has been acknowledged as fact in Court rulings.  So they press on, perhaps hoping that persistence will pay off if an awareness of the facts and the truth of the matter are insufficient.  The Court did, however, agree that the documents support the fact that the Chiefs wished to have a 200 acre parcel of land near the Mohawk Institute reserved for Six Nations use.

Basically all lands except the parcel in Brantford were surrendered without encumberances, and the boundaries of the consolidated Reserve were defined as per Lord Elgin's report of 1850.

The land claim relating to the Douglas Creek Estates, and all claims relating to lands, will be the subject of a later blog posts.


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