Wednesday, 13 November 2013

Why Has So Little Progress Been Made in Negotiations Between Six Nations and the Government of Canada?

At Six Nations, as reflected for example in the content of articles published in Turtle Island News and Two Row News, the Government of Canada, through Indian and Northern Affairs Canada (INAC), is constantly being targeted as the source of the various problems which have driven a wedge between the people of Six Nations and the surrounding communities. 

The purported role of the Federal Government for standing in the way of talks to resolve outstanding issues of one sort or another is a thread that runs long and deep at Six Nations.  The belief is that the Government of Canada is at fault for their perceived woes.  Apparently there is one solution to the problem (which all acknowledge is going to be extraordinarily difficult to enact, if history is any guide) - addressing internal divisions at Six Nations.  According to candidate for the postion of Elected Council Chie, Ross Johnson, When we fight against each other, we fall into the trap of the federal government.  As long as we're scrapping together they don't have to come to the table with solutions to our land rights, our legal rights, our human rights (Turtle Island News, November 6, 2013, p. 2).  In all of these discussions, all that are mentioned are rights, not responsibilities - although this should be the subject of a separate blog post.  So blame the Federal Government - this is endemic at Six Nations and the "Government" is seen as the cause of the 2006 "Caledonia crisis" (or "reclamation", depending on who you ask).  By in large, Six Nations see INAC as directly responsible for this incident and subsequent events.  For example see, Lynda Powless, Douglas Creek Reclamation: A Pictoral History, Ohsweken, Turtle Island News, 2006.

As I have noted time and again in this blog (and almost all at Six Nations acknowledge this to be true), a very major difficulty is factionalism, and in particular that between the Six Nations Elected Chiefs (SNEC) and the Haudenosaunee Confederacy Chiefs Council (HCCC).  The two parties lock horns on every conceivable matter, and although SNEC is the Government recognised body through which legal negotiations can take place, the HCCC have been persistent and adamant that they are the legitimate body that should be at the negotiating table with the Federal Government.  Over and over, this division has virtually ensured that no progress can be made - but the Federal Government will still take it on the chin since they are the group that all at Six Nations can agree are the source of the present difficulties.

The "cheek" of some people, even within the body that is mandated to negotiate with the Federal Government, is positively astounding to those outside the Six Nations Community.  For example, in the recent debate of candidates for the position of Chief of the Elected Council, candidate Ava Hill said in describing her leadership abilities that, the federal government doesn't tell me what to do.  The people in the federal government shudder when they hear my name, I challenge them (Turtle Island News, November 6, 2013, p. 3).  So much for bargaining in good faith as equals.

So what is the real story here, the one that can be backed up with facts irrespective of beliefs?  In fact the Federal Government was forced to abandon negotiations when, In March 1995, Six Nations filed a lawsuit against the Government of Canada and the Province of Ontario, which also relates to how Six Nations' lands and monies were managed by the Crown.  None the less, informal talks continued with Six Nations, and both the Governments of Canada and Ontario, who would be the three parties to any agreement that resulted.  After the "Caledonia crisis", talks resumed and, based on the wishes of Six Nations, the priority claim was that relating to the flooding caused by the Welland Canal Feeder in the 1830s and 40s (and beyond).  The offer from the Federal Government was $26 million dollars.  As someone who has examined the available documents, who is familiar with the history and geography of the affected area, I would venture to say that this was a rather generous offer.  The Six Nations countered with an offer to settle of $500 million dollars - in other words half a billion dollars for something that pertained to a period of about 10 to 20 years, 180 or so years ago.  Hence it became apparent to one and all outside of the Six Nations negotiating team, that to settle the various claims there would be a demand for many billions of dollars of Canadian taxpayers monies.  One wonders, "what were they thinking?".  How can Canada, especially with its present fiscal situation, and the many other First Nations groups demanding "financial justice" even think that this would be viable?  Of course they did not accept the counter offer.  In real estate terms, it was insulting and entirely unrealistic - so why proceed with spending endless hours at the negotiating table when the outcome is going to be "off the wall" demands.  Demands must be tempered with a knowledge of the realities of the situation, and what Canadian taxpayers would be burdened with based on only one side's view of what would bring justice to the fore.

So who are the "Six Nations" in these negotiations?  Would the Elected Chiefs really endorse a proposal that is indefensible on each and every account?  Why has so little progress been made?  A decision was made at the time of the "Caledonia crisis" to turn the responsibility of land claims negotiations over to the Confederacy Chiefs.  This decision by the Elected Chiefs would virtually ensure that nothing but the spinning of wheels could be expected in any negotiations.  Since I have noted elsewhere (repeatedly), various groups claim the "right" to negotiate on behalf of the Confederacy Chiefs - groups who often in open conflict.  See here for Elected Councillor Helen Miller's very pointed statement about the change of guard at the negotiation table.

Despite all of the unrealistic demands, In August 2009, Six Nations formally reactivated their 1995 lawsuit. Canada advised Six Nations and Ontario of its willingness to continue participating in negotiations.  Thus, it was Six Nations that has in fact ensured that negotiations grind to a halt, with the  Federal Government one again facing a formal lawsuit.  How with all honesty and in good faith could Six Nations behave in this manner, then claim that they are the victim of the process.  That does not square with the facts.  Furthermore, there is absolutely no guarantee that the HCCC and their "representatives" would agree to whatever is negotiated since they have their own competing agenda.  So the Government is beat, with their backs against the wall, and nowhere to move - yet criticised as the party responsible for the problems at Six Nations.  How could so many people be blind to the realities?  My guess is that in a game where you have painted yourself as a victim, it is going to be all or nothing here.  My way or the high way.  In my opinion, until the Six Nations negotiating team becomes aware of the way in which progress can be made (at any negotiating table in any part of the world), then the Government is beat and everyone will continue to spin their wheels.

The entire history and details of the negotiations between 1980 and 2009 (not much has happened after Six Nations made a demand for a half a billion dollars for flooding between the 1820s and the surrender of 1841), can be found in a very carefully worded document from the Federal Government seen here.  For the Six Nations perspective on the process see here.

In conclusion, Six Nations will have to come to terms with the "Holmes Report" (submitted by Joan Holmes and Associates to The Corporation of the City of Brantford in 2009) noted elsewhere in this blog, and after accepting that the land claims do not rest on any legally defensible ground, focus on the financial mismanagement or misappropriation issues and see where that line of enquiry will lead - but with reasonable expectations for compensation for events that occurred often for only 10 years or less before the general surrender of 1841.  I hold out little hope of anything of material significance coming out of any further talks.  As recent events have shown, there is nothing positive to be accomplished except creating the illusion that "talks are continuing". 

Update:  In Two Row Times, November 20th, 2013, p. 3 there appears an article, What about SN litigations against Brantford and the Crown?. The reporter questions the status of these negotiations, and asks whether they are likely to be settled within his lifetime.

The current Director of Lands and Resources (an Elected Council mandated division) is Lonny Bomberry, a lawyer. He updated the reporter as to the current situation. Bomberry said that concerning land, most of these land patents, which put in third party hands, were given illegally, he concedes, 'The problem with Canadian law is that after a while if you don't exercise your legal rights to get it back, your rights disappear''. This refers to what the present author has spoken about before under "Statute of Limitations". The reporter then states that, Bomberry seems intent to be patient and wait as long as it takes, meanwhile, if deals can be worked out with developers to at least accommodate Six Nations something, he is all for that. Bomberry told the reporter that in a way municipalities such as Brantford are off the hook, based on a decision by the British Columbia Court of Appeal in the Salmon Arm case which puts the responsibility of negotiating on the shoulders of the Crown, not the municipalities. In what seems to be a revealing statement, Bomberry says that continuing to push forward in the Courts may not be "cost efficient". Specifically, Litigation is expensive and it can drag out for years, ....... And especially something like this when you need historical experts. It could take years. I suppose we could push that issue if we wanted to, but we have chosen to try and get this worked out through negotiation, that's always the easier way to do it.

In looking at the wording of Bomberry's replies, the present author is led to wonder whether he has been shown a copy of the "Holmes Report" which basically makes it abundantly clear that the Province of Ontario has an intact and valid land registration system, and that all of the land claims cannot be supported - hence the Federal Government not agreeing to stamp any of them (except a couple of minor ones such as those relating to the land the railways obtained relatively recently). Just reading between the lines, I wonder whether because Bomberry is well versed in the law, he has read the Holmes Report and knows that Six Nations are up against a brick wall, and so he would rather focus on the claims where Six Nations alleges that the Federal Government is responsible for the supposed fiduciary issues relating to monies placed in trust for the Six Nations, involving "wrongful management".

If Bomberry has not been given a copy of the "Holmes Report" of 2009 (which I have discussed in detail in earlier posts), then it seems only fair and responsible to do so - even though commissioned by The Corporation of the City of Brantford in 2009 and submitted to Justice Harrison Arrell of the Superior Court of Ontario. Thus, in my opinion, Lonny Bomberry, the Director of Lands and Resources for the Elected Band Council should be privy to a copy of the "Holmes Report" in order to understand how it will be impacting the decisions of the Superior Court of Ontario. Also, the representatives of the Haudenosaunee Confederacy Chiefs Council (HCCC) should also have access to this document since, although not officially sanctioned or recognised by for example the Federal Government of Canada, they have legitimacy in the eyes of a significant number of Six Nations members. In my view, unless anyone wants to play Don Quixote, and in a futile way "tilt at windmills", the facts have to eventually be acknowledged so that everyone can move on knowing what is valid and true.


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