Thursday, 24 April 2014

Brantford Court Injunction and Fine Levied Against Six Nations Members: Answer as to Who Will Pay - Sort Of

It appears that the fate of the group of protesters facing a very stiff fine for engaging in illegal work stoppages in Brantford in 2008 and 2009, has been revealed.  Of course, since we are talking about Six Nations, and political implications, it is going to be complex and bring to light the inherent factionalism which permeates virtually every facet of dealings at Six Nations.  To those of us who do not attend Elected or Hereditary Council meetings (only reporters tend to be present), news of a settlement in the offing in the above matter (5 years after the Court Injunction and trial) was something of a surprise.  Recent articles from each of the two Reserve newspapers shed light on the matter - and highlight the immense divisions dogging everything in that quarter.

Article in Two Row TimesIt is apparently a surprise to just about everyone that the City of Brantford was offered a settlement in this case dating back to 2009.  This according to an article, Brantford accepts $125,000 injunction deal, "Two Row Times" (TRT), April 9th, 2014, p.2.

As a review of this matter, after numerous work stoppages at various construction sites in Brantford, the developers succeeded in obtaining an injunction against the Six Nations protesters (or "land protectors"), and as a consequence a series of well known activists, along with the Haudenosaunee Development Institute (HDI), which is an arm of the Haudenosaunee Confederacy Chiefs Council (HCCC), including its director and the lawyer for this group (HDI), faced the prospect of coming up with the cash to pay a very stiff fine.

However, what is important to note is that the Court, thanks to the Indian Act of 1876, is unable to garnishee wages or in any way secure assets of the persons engaging in illegal acts as long as those assets are located on the Reserve.  Specifically, Section 89, states that, the real and personal property of an Indian or a Band situated on a reserve is not subject to charge, pledge, mortgage, attachment, levy, seizure, distress or execution in favour or at the instance of any person other than an Indian or a Band.  Thus an Indian can commit an indictable act and expect only jail time (if that) but will not have to pay any fine levied in the case as long as they ensure that all assets are kept on reserve.  If it seems unfair, and as if a double standard is being applied, that is correct, a non - Indian would have their wages garnisheed and their house sold or whatever it took to obtain the full amount of the fine, or a settlement for what they might reasonably have the ability to pay (by throwing themselves on the leniency of the Court).

I have blogged about the original circumstances and the judgment of Justice Harrison Arrell of the Ontario Superior Court in Brantford in 2009.  The amount levied as a fine was initially $1.2 million, reduced to  $350,000 plus interest against well known activists Floyd and Ruby Montour, some lesser known individuals, "John and Jane Doe", as well as Hazel Hill the (then interim) director of the HDI and Aaron Detlor the legal council for the HDI.  All along it was realized that only the latter two could be expected to have assets sufficient to pay a fine of this extent.  The HDI has for years been raking in thousands upon thousands of dollars by a mafia - like racket where developers are tapped on the shoulder to pay an "application fee" to permit the development of their own land (registered and on title in the Ontario Land Registry system).  The going rate was typically from $3,000 to $7,000 and to avoid trouble (work stoppages when a van load of goons arrived and would keep equipment from reaching the site).  Many developers thought it prudent to "play the game" and cave in to the extortion - like behaviour since there was little chance of any law enforcement body protecting their interests.  Since the "Ipperwash Inquiry" following the death of Dudley George, the Ontario Provincial Police, to avoid another embarrassing repeat of Ipperwash, have engaged in "peacekeeping" actions, not law enforcement.  If developers tried to legally remove the "protesters" trespassing on their land, even with a Court order, the OPP would side with the protesters and ensure that legal owners or their representatives faced arrest if they tried to go about their business when "protesters" were present.  The only recourse to those who refused to pay was to obtain a Court injunction (pre-emptive or post facto).  It is the role of the Ontario Provincial Police to enforce the injunction and at least take the offenders off site to be booked at the local OPP detachment - however this is not the actions taken by our "peacekeepers".  Developers might expect some assistance from the OPP as long as the numbers of protestors are small, and hoards of Six Nations reinforcements unlikely to arrive (as happened thanks to the proximity of the Reserve via 6th Line and Stirling Street at the Douglas Creek Estates "reclamation" in Caledonia 2006).  Generally, since 2006, when an Indian action is involved, we have only seen the Ontario Pathetic Police in Haldimand County.

The reporer in the above noted article noted that it is unknown who will actually pay the $125,000.  Apparently the Montours knew nothing of the deal, and according to the reporter, the fact that they have not been kept in the loop is troublesome to say the least, adding that, One of the premises of the HDI is consultation and what is obvious here is the complete lack of transparency concerning this settlement offer.  Apparently the City of Brantford lawyer, Kimberley Farrington, was herself surprised that an offer was made to settle as they had held 'faint hope' any monies would be recovered. 

The only entity in a position to pay the fine is either the HDI (swollen with, what some might say, are its ill gotten gains), or its lawyer, who as a member of the Ontario Bar would be required to pay debts owed or face disbarment.  To the present author this lawyer, Aaron Detlor whose summary legal profile is seen here, is a man of mystery.  It is not clear whether he is a Band Member or not.  The Mohawk Nation News calls him a "non-native ambulance chaser" - see here.  Apparently he took some proactive steps to ensure that his assets off reserve could not be touched, selling his house in Toronto in 2013, and placing all of his recoverable assets on the Reserve.  Realistically the only one who would seen to have any reason to settle is the one with the most to lose, Mr. Detlor.  If disbarred, he would no longer be a lawyer with a license to practice in Ontario.  Clearly this whole HDI shtick is not the "cash cow" that was the case in the years immediately following the Caledonia 2006 situation, when the HDI came from nowhere to enter the ranks of the many groups at Six Nations claiming to represent Six Nations in this or that situation with developers, government or whomever.  Mr. Detlor had previously hoped that the "Community" would pick up the tab for the fine.  Perhaps this is true, but that would pose problems for whomever was anteing up since being invisible is only going to open the door to more and more questions.  To the present author, initially it did seem most likely that the person with the most to lose would pick up the tab, whether with infusion of cash from HDI or not could only be a matter of speculation.

The reporter of the above article stated that, Having the City of Brantford able to collect funds from the HDI is not fundamentally different than the City collecting from the Haudenosaunee Confederacy Council itself.  The author then makes a very interesting comment which is worth quoting in full:

How and why is this being allowed to happen?

The precedent set forth here could feasibly cripple Six Nations' efforts to protect its interests on lands across Brantford and the Haldimand Tract if a municipal corporation can pass laws to effectively circumvent treaty rights, the Federal government's Indian Act and our structures of governance.

The big question that is yet unanswered, is who really made this offer and under what circumstances?

The answer was soon to come, via an article in the competing Reserve newspaper.

Article in Turtle Island News:  It is possible that my guess / surmise was at least partially or wholly wrong.  In "Turtle Island News" (TIN), April 16, 2014, p.4 there is an article, "Brantford injunction settlement may have sparked libel suit", where we find that the plot thickens.  Apparently Branford officials disavow of ever having spoken to the reporter in the above article, and thus in essence revealing confidential information.  Here, Brantford city council is investigating how legal documents outlining a settlement of the Brantford-Six Nations injunction case were leaked to an area newspaper that may also be facing a libel suit.  Thus it seems that the reporter, and "Two Row Times" may become embroiled in a legal suit. 

There are two parties who are allegedly upset with the reporter and the newspaper, the Brantford city council, and the Haudenosaunee Development Institiute (HDI).  The latter, a wing of the Haudenosaunee Hereditary Confederacy Chiefs Council (HCCC) are, "considering a libel suit".  The reason, since the HDI agreement lacked transparency (an accusation made by multiple individuals multiple times including the reporter for TRT), and that their actions were "troublesome".  There is an old expression, "if the shoe fits .......... ".  Apparently, according to the Director of the HDI, the reporter also "exposed my family to ridicule and hurt", by revealing personal financial information.  I am not sure is if there is a hypersensitivity here, or a hidden agenda, but the present author cannot see this sort of information anywhere in the article in Two Row Times.  Bear in mind that the author of the Turtle Island News is the editor of TIN, an avowed supporter of the HCCC, and that Two Row Times is a newspaper in direct competition with TIN.

The TIN article also reports that it is the HCCC who will be footing the bill, with nothing coming out of "community money", largely because five of those charged where in fear of losing their homes, pensions and being in financial distress.  This despite the fact that no one can come after assets on the Reserve, thanks to section 89 of the Indian Act.  The two lawyers informed of the acceptance of the settlement offer were Aaron Detlor of the HDI council, and the lawyer for two elderly activists well known to everyone hereabouts.  Apparently Detlor had informed the HCCC that all was lost and that the City of Brantford "was seeking $1.2 million in costs".  The HDI Director explained that, the money will come from administration fees the HDI has been able to raise through its programs, and not from any monies received from developments.  However, where the "administration fees" were found is not explained.  Apparently the Federal Government and the City of Brantford were about to launch, "a plan of litigation against the Haudenosaunee".  Furthermore, the Director of the HDI has concluded that the article in Two Row Times, "is jeopardizing the rights of the Haudenosaunee", and could "cripple efforts to recover lands".  The present author is unable to understand the rest of the concerns and rationale being expressed by the Director of the HDI, against the City of Brantford, the Federal Government, or the reporter of the TRT, so I will leave things here.  One wonders if the whole matter boils down to the reporter (JW) stating the obvious, which in turn touched a nerve in the Director of the HDI who has been under considerable criticism; and HDI may have become redundant (obsolete) now that the Elected Council's version of the HDI, the Consultation and Accommodation Policy (CAP) with their own lawyer, a Community member, Lonny Bomberry, is up and running and has made deals with the big players such as Samsung.

Response by TRT to the Accusations in TIN:  In responding to the threats of a libel suit made against the newspaper Two Row Times by the Director of the HDI (supported by the Hereditary Council), Elected Council member Helen Miller wrote a letter to the editor wherein she questions the Director's stated reasons for acting to effect a settlement in the above case.  She goes on to say that the assets of those who reside on the Reserve cannot be touched.  The only one vulnerable is the HDI lawyer, Aaron Detlor, and, the only butt the CC [Hereditary Council] is protecting is Detlor's butt.  Councilor Miller also notes that the Hereditary Council has changed recently, and not for the good since the HDI took over the helm.  She also questions why the Clan Mothers and Chiefs haven't had community meetings to update all on the development deals "negotiated" but the HDI, with everything shrouded in secrecy.  Furthermore, At this point in time the HDI/CC still hasn't accounted to the community for any money generated from the development deals or the fees charged to developers.  Neither has there been any accountability as to where the 'administration' money comes from.  People often ask: 'Who is funding the HDI?'  Councillor Miller speculates that due to the apparent close relationship between the Hereditary Council and HDI with the Provincial Liberal Government of Kathleen Wynne, perhaps this is the source of the administrative funding.

It is interesting that Councillor Miller chose to publish her letter in TRT, not in Turtle Island News which is highly supportive of the Hereditary Council.  One wonders if the former is aligning itself with the Elected Council and the latter with the Hereditary Council so each newspaper has a different "flavor".

Response of TIN to the Continued Infighting Concerning the Injunction:  The Editor of TIN, in an Editorial of April 23, 2014, p.6, talks about how the, fur has been flying over unsubstantiated claims that the Confederacy Council is somehow jeopardizing Haudenosaunee sovereignty by paying a $175,000 court fee imposed on the community by a provincial judge, who was way out of his league in imposing it in the first place.  The statement is not supported by anything but belief.  Justice Harrison Arrell was given the task of stopping illegal work stoppages, and he did that with a remarkable degree of success.  The statements of the Editor seem to come perilously close to libel - but I am not a lawyer.  It is the opinion of the Editor that the reason that the key to understanding the reasons for effecting a settlement in the matter was that the HDI were a named party in the Injunction, as well as John and Jane Doe of Six Nations.  In her opinion, the entire court fight was really a move to get rid of the Confederacy's department and leave the Confederacy once again without the staff to help push its land rights case in Canada.  In addition, according to the Editor, the Confederacy, led the talks that brought down the barricades and brought back Burtch before the talks stalled when the [Elected] band council walked from the table and has yet to provide a reasonable answer for walking.  The whole matter of the Burtch lands will be the subject of a later posting.

The Editor of TIN eventually got to the point in saying that, What paying the bill will do is alleviate pressure on Six Nations people living off reserve whose holdings could be garnisheed (pensions by the way can be) or confiscated to pay the bill and let's remember there are over 15,000 band members living off reserve who make up the John and Jane Doe named in the lawsuit.  Also, It was about helping the people.  To suggest it was anything else or to try to claim it was only to benefit Detlor who may live off reserve is in fact libelous since it accuses Detlor of misuse of community money to pay his own legal fees which has no basis in fact or truth and as such damages his reputation.  Since the HDI is about as transparent as a wall of granite, I am not sure how the Editor can come to such a firm conclusion.  Irrespective, the bottom line according to the Editor is that, The Confederacy has no way of knowing if the city would attempt to take the assets of Haudenosaunee living off reserve.  Should not Detlor know whether it is possible or likely that the Corporation of the City of Brantford would or could in fact come after assets of people who for example live in Toronto to pay for a situation in Brantford - is John and Jane Doe really some sort of coded warning to all Six Nations people wherever they happen to live?  Detlor is a lawyer called to the Bar in Ontario.  He should know the answer - however he is the mystery man, whose ties to the Community are a big question mark.  His agenda here is a matter for speculation since there is nothing on record that would clarify things.  So the Editor guesses, and the present author guesses, but do either of us really know?  The statement on the cover page to TRT (9 April 2014) that, It is unclear who exactly is paying the costs of the settlement is, at this point, entirely correct.  Some party or parties associated with the Hereditary Council would be about all one can say with reasonable certainty.

While the Director of the HDI may have concerns, there are a lot of issues of an even wider ramification.  What this whole business brings to the surface is the gross double standard allowing Six Nations to hide behind the Indian Act since there may not be any consequences to a protest which cripples developers.  All they need to do is to retreat back behind the walls of the Reserve boundary, and they are safe - using laws meant to protect them.  Instead they may, sometimes, with impunity create havoc in the surrounding community.  Perhaps the Indian Act needs "amending" - or gradually withdrawn in order to ensure that all Canadians are equal in the eyes of the law.  Right now that is just a sick joke where, as with the approach used by the Ontario Provincial Police, there is one approach for Six Nations, and another for other locals in the vicinity.

If one views this through the lens through which Caledonia residents must look, it is eminently unfair - there is no other way to see the matter.  If, next time, the City of Brantford (or County of Haldimand) were to use the law of the land, and work with the Federal Government, there is a real prospect of recovering "costs" which may be in the millions of dollars.  In the above case the settlement reached cut short this step in relation to the Corporation of the City of Brantford.  Perhaps the next time there will be no settlement, only the full weight of the law applied fairly and without prejudice.  At some point, it will be necessary to tally up all of the costs associated with the Six Nations Community action of 2006 and beyond in relation to Caledonia,  Here, with a Court case that may go all the way to the Supreme Court, and all of the facts laid out on the table, the Province, Federal and local governments stand to recover multi millions of dollars in what would be a just and fitting example to those who would flaunt the law and cause irreparable damage to innocent parties such as citizens of Caledonia who by chance happened to live in proximity to the Douglas Creek Estates. 

Long Term Solution - All Assertions of Sovereignty, Treaty Rights, and Land Claims must go to Court - Not the Negotiating Table:  I make no bones about it, I would desperately like to see the whole matter go to Court with every shred of evidence brought to bear on the task of determining the truth.  If one only seeks the truth, then the robust facts will speak loudly, and they will drown out the thin data that Six Nations could bring to Court - I have seen it and it simply would not measure up.  In the above Turtle Island News Editorial of 23 April 2014, the Editor said that the HDI had followed the wishes of the Hereditary Council (HCCC), and did not take the documents or treaties or wampums into court that could have saved them all.  That would have been a very unlikely scenario.  In fact Justice Arrell asked for a report by a treaty and historical research team in Ottawa, and based on the findings from the Library and Archives Canada, the RG10 Indian Affairs Papers, if the Six Nations wish to pursue land claims in Court, then they have a "very weak case". 

Surely all know that based on the real evidence (not on soft data such as hearsay or "oral history" that are subject to significant biases) Six Nations will lose.  I have detailed the fallacy of using the Two Row Wampum to address the matter of sovereignty; the fraud that was perpetrated by the then Five Nations in making the 1701 Nanfan request (it was not a treaty); and the indisputable fact that all of the lands claimed by Six Nations were ceded by the Chiefs in Council by 1848 (the last issue being the Burtch Tract which in the latter year the Chiefs agreed should be surrendered and sold with monies going to the Six Nations Trust Fund).  See here for detailed information on the evidence pertaining to all three matters.  So, bring it on, and let the facts speak - and be prepared for an unfavourable outcome that has the potential to shake Six Nations beliefs to the core.  Wishing it be true does not make it thus.


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