Thursday, 17 April 2014

Consultation and Accommodation Policy of Six Nations: Example of Enbridge Pipelines, Inc.

Updated 25 April 2014.

An article, "Enbridge told to consult with community after hot council session", appeared in the most recent issue of "Turtle Island News", 9 April 2014, p.6. 

The Requirement of a Corporation to Consult and Accommodate When a Group Claims Aboriginal Status and Treaty Rights:  There is an inherent assumption here that there is a formal requirement that corporations who intend to proceed with projects that will impact lands within the Haldimand Tract, or even Southwestern Ontario, must consult with Six Nations.  Before delving into the specifics of the present concerns in relation to "Energy giant Enbridge Pipelines,  Inc.", it will be useful to determine what legal requirement is established in relation to "consultation", which in turn may determine what restrictions are placed on the actions of a company such as Enbridge working in Southwestern Ontario.  My question is, "what if they had been led astray, and a group is claiming baseless 'rights' to be consulted, and demanding accommodation"?  It must be acknowledged that the situation in Southwestern Ontario may bear little to no parallel with what occurs in say Alberta and British Columbia.

Six Nations Demands Consultation:  At a recent Elected Council session, as noted in the above article, two members of Enbridge's "advisors for the company's aboriginal affairs division" were grilled, and then told, by the way, this was not "consultation" (the formal part).  The assumption here was that Six Nations have rights, not defined in the article, which required that Enbridge consult with Six Nations about two pipelines which cross the Haldimand Tract, both on lands surrendered prior to 1849.  The question here is, "What is the legislation or policy that would require a corporation to consult with Six Nations about matters that do not directly impact the lands under Six Nations jurisdiction?"  If it is a more general environmental matter concerning say possible pipeline ruptures, then any consultation would, one would think, need to involve all stakeholders - which would be for example all people say downstream of the pipelines, irrespective of ethnicity.  It would appear that Six Nations have in place some requirement that corporations need to consult with them, irrespective of any other stakeholder.

        Possible Rationales for Mandatory Consultation -

a)  The "Grand River Notification Agreement" which was instituted in 1998, and has been in effect until at least 2013 when the most recent 5 year renewal component was set to be either renewed or abandoned.  See here for the details of the Agreement.  Here the various municipalities within the Grand River Haldimand Tract, and the Grand River Conservation Authority (GRCA) agreed to "consultation about land use issues", this might be the club the Elected Council was wielding against Enbridge.  However since this agreement about consultation is with local municipalities and the GRCA, it would appear unlikely that this document is pertinent to the present situation - especially since the clause, "This agreement is not legally binding on any of the Parties" would seem to rule out its application to the conflict between Six Nations and Enbridge.

b)   The "Aboriginal Consultation and Accommodation - Updated Guideline for Federal Officials to Fulfill the Duty to Consult - March 2011".  See here for details.  Perhaps the Council's position that Enbridge was mandated in some way to consult might come under the Federal Government's purview.  However, this document appears to apply only to instances where the Federal Government is the primary party - which does not appear to be the case with the Enbridge matter where the problem appears to be only between Enbridge and Six Nations.  Besides, this provision applies only to Aboriginal groups (the Mississauga not the Six Nations are "Aboriginal" to the Haldimand Tract), who have Treaty Rights (Six Nations only have perceived "treaty rights" based on the fraudulent Nanfan agreement of 1701 - there is no treaty with the Crown as to Grand River lands).

***  So I ask the question, "Upon what basis does Six Nations claim to have a right to be consulted by Enbridge Pipelines?"  My guess here is that it hinges on the invalid Nanfan "Treaty" of 1701 relating to all of Southwestern Ontario, and Land Claims in the Haldimand Tract which assert rights to lands rightfully and legally ceded 170 or more years ago.  For evidence concerning these treaty and land claim rights of Six Nations see my posting here.  A number of groups at Six Nations, claiming legitimacy derived from the above two matters, have emerged subsequent to 2006 - after the government bungling of the "Caledonia crisis".  Here the Provincial and Federal Governments, as well as the Ontario Provincial Police, have acted as enablers, as if allowing adolescent children to test the limits.  Apparently there are no limits, and in only one instance has there been any significant consequences to illegal actions taken by Six Nations.  Hence the latter have been quick to capitalize on this weak willed, weak kneed group to embark on an array of self serving and quite arbitrary (but always about money and control) plans which have the potential to harm local people, and more particularly corporate entities  In the midst of the swirling chaos, two groups, noted below, use the above underlined matters as rationales to demand that, for example, developers and utility companies throughout Southwestern Ontario consult with them, and pay a fee for the privilege of having demands forced down their throats.  One obtains its authority via the Hereditary Council faction, and the other via the Elected Council faction.

        Two Groups Potentially Requiring Mandatory Consultation by Enbridge -

a)   The "Haudenosaunee Development Institute (HDI)".  This is an entity which has arisen from the ashes of the "reclamation" of 2006.  A Wikipedia article, apparently written by an HDI official) can be seen here.  In relation to development of any kind, it acts as an enforcer the Hereditary Confederacy Chief's Council (HCCC, the "shadow cabinet" to the present Elected Council which claims historical and moral authority in all conceivable matters at Six Nations).  Here the HDI claims the right to extract application fees from developers, and to insert paid archaeological monitors to sites within Southwestern Ontario despite already having Elected Council approved individuals, trained by the Professional Archaeological Association of Ontario, on site.  The monies derived from these "deals", often emerging after a van load of goons appears on the developers doorstep, go into a fund where there is absolutely no transparency.  No one at Six Nations outside the HDI has any idea where these "community funds" go.  In any other jurisdiction they would be shut down, and taken to Court to answer charges of possible fraud and extortion - but this is Six Nations, and this is post 2006, so Six Nations makes their own rules, and oddly few seem willing to challenge them.  A recent "settlement" in the fine levied by the Superior Court of Ontario due to a violation of a Court Injunction has brought this matter into focus, and has effectively neutered the HDI.  I will post on this development in short order. 

Not to be outdone, the Elected Council, aware of the financial success of the HDI, has developed a "team" called CAP to serve their own interests (the Hereditary Council and the Elected Council are generally not on speaking terms - which means that the Federal Government is at a loss as to who should be consulted in virtually any matter of consequence).

b)   The Consultation and Accommodation Policy (CAP).  While not explicitly mentioned in the newspaper article, is seemed evident that Enbridge was being castigated by Six Nations Council members because, since Caledonia 2006, another new "policy" is in place.  In this case it is a child not of the HCCC, but of the Six Nations Elected Council (SNEC).  This "policy" has impacted, for example, Samsung of Korea, in this case concerning their plans to install wind turbines along the Lake Erie shore. 

The "Team" claims authority within the bounds of the fraudulent Nanfan document of 1701, and more particularly within lands in the Haldimand Tract ceded by Six Nations 170 and more years ago, and to which they have not one particle of legal right.  I have refuted the pretext in many of the blog postings (for example see here), as have many others independently researching the matter, and collectively we have shown with proper references that:

1)  The Six Nations are aboriginal to what is today Upstate New York, not Ontario.  The Mississauga are aboriginal to Ontario by right of conquest, defeating the then Five Nations who had in an act of earlier genocide, murdered the indigenous Huron / Wyandot and others.  All Five Nations settlements were gone from Southwest Ontario by 1696, and they formally surrendered to the Mississauga and allies in 1700.  The British Crown purchased the Haldimand Tract from the Mississauga in 1784 in order that they could offer Six Nations a legal title of occupation to the lands of the Grand River.

2)  The Nanfan document of 1701, purportedly giving "treaty rights" to Six Nations, is not by any stretch of the imagination a treaty, only a sham piece of parchment, not worth the sheep hide it is written on.  The document was never given the Privy Seal of the Crown and had no status at any time - until recently "revived".  At any rate there was no Five Nations presence in Southwestern Ontario in 1701, they having lost all claim 5 years earlier, so it is invalidated on this basis alone.

3)  There is ample documentation that all lands not within the present Reserve boundaries have long ago passed from Six Nations ownership.  These land surrenders to the Crown were entirely legal and binding, signed by for example 67 Chiefs in Council, who frequently included a clause that they wished that future generations not challenge their decisions.  By 1848 all presently "contested" lands had been legally ceded.  In my view, it is not proper to go against the wishes that the ancestors had finalized so many years ago.  Apparently I am in the minority.

So, despite the evidence, and the 2010 opinion of Justice Harrison Arrell of the Superior Court of Brantford that Six Nations that should they bring the matter to Court, Six Nations would have a "very weak" case in relation to land claims, no one has challenged the "rights" of Six Nations.  As it stands they can coerce a company, and force them to "consult" (be raked over the coals if they do not see the wisdom of agreeing to everything Six Nations "proposes"), and "accommodate" which roughly translated means bowing to Six Nations wishes ("or else") and pay up.  The Six Nations are laughing all the way to the bank as the rich corporations are willing to cough up whatever is demanded rather than take Six Nations to Court and expose this illegal "policy" for what it is.

(CAP) formally emerged 24 September 2013, so is a relatively new player on the scene - although something similar but less formal was in place earlier.  Frankly, since I was out of the Country when this was quietly introduced, it passed under my radar until my return a few weeks ago when I began to piece together all of the evidence as to who was "leaning on" corporations such as Samsung.  The subtitle of their policy is, "A Policy to obtain free, prior and informed consent of the peoples of the Six Nations of the Grand River".  Free?  So that means all of the wind turbine companies paid nothing - which is not true, as I have detailed elsewhere in this blog.  So now can Enbridge expect that by "consulting", that part of the "accommodation" will NOT involve paying money?  The answer should be self evident.

In looking at the 7 page CAP description of their policies and procedures (see here), they refer to the United Nations policies on aboriginal peoples (Six Nations are not aboriginal to the Grand River, only the Mississauga can make that valid claim), International Laws, and duties of the Crown (which has "failed in their fiduciary duty"), certain procedures need to be followed.  They further state that they expect that they will be fully funded by others, and that others have responsibilities and duties - and that Six Nations have rights and entitlements.  To add to the narcissism of the document, it dictates that the Policy does not apply to third party private land owners - but only those who are "Members of Six Nations within the SNGR Territory".  This document is a unilateral declaration, it has no weight in law or precedence, it is simply a rationalization for what Six Nations have already been doing since 2006.  They state that they "fully expect" that "all Proponents, municipalities and The Crown to respect the terms of this policy". 

Here in the CAP policy manual they refer to "inherent rights, treaty rights, and title".  In effect none of these three apply.  To repeat, because it bears repeating, the Six Nations are not aboriginal to Southwestern Ontario and the Haldimand Tract, they are Loyalist refugees who were given a specified territory in which they could reside, but that the title to the Grand River lands is vested in the Crown - never has the latter been successfully challenged.  In the period leading up to 1848, all lands within the Haldimand Tract were ceded, surrendered and yielded up such that the only lands to which they have any rights is Indian Reserve Number 40, the Six Nations Reserve of about 46,500 acres.  See here for specific evidence of these false claims, as well as to rights by virtue of the Nanfan "Treaty".

There is even an "Enforcement" clause whereby if anyone fails to abide by Six Nations views in the matter, they will take actions including, "dispute resolution, legal action; and any other action deemed reasonable".  As to the latter, in the past Six Nations have included violence in the category of "deemed reasonable".  In case any believe that this would not apply today, in the most recent issue of Turtle Island News, 16 April 2014, p.3, there is an article entitled, "Elected chief warns Ottawa of' 'threat of violence' if Bill C-10 approved".  So the Chief of the Elected Council is warning all (not just the Federal Government) that if Bill C-10 passes, in other words cracking down on the transport of contraband unstamped cigarettes (sometimes known as purveyors of death), "violence" can be expected.  

The only groups who would agree to having anything to do with CAP are those who are extremely naïve, or believe that giving in to strong arm interests is just the price of doing business, and that to stand on moral and legal grounds is simply more trouble than it is worth.

Now that we appear to have established the rationale for requiring Enbridge to meet with Six Nations, we can return to the content of the above article.  Clearly Six Nations feel so empowered (since no one has stood up to challenge them) to assert a veiled threat that Six Nations could arrange to remove any pipeline that crosses their territory.  One Councillor said, "You're crossing the Grand River twice in our territory", he said.  "What happens if we want you off our territory?"  Of course this is an absurd threat because neither pipeline crosses Reserve land.  One crosses the River at Ayr, and the other just east of Caledonia (the latter crossing shown in the picture below taken 14 April 2014, with the River in flood).

It came as no surprise that "compensation" should be brought into the mix (with environmental concerns being shuffled out the door).  The Council Chief, "expressed concerns that Six Nations has not been compensated for Enbridge's use of Six Nations land".  I am confused, what land would this be?  The answer was not long is coming.  Elected Chief Ava Hill said the compensation 'has to be retroactive to 1960, when it was first put in.  It's called reverse accommodation'.  Actually the term threatened extortion may apply here - especially since Six Nations has absolutely no "rights" within the lands that the pipeline crosses.  If Enbridge caves in here, it will be a political decision, not a legal one.  Hopefully they will have the will to see justice done and will take the whole matter of land rights to Court.

There is further information on the "meeting" between Enbridge officials and Elected Council in "Two Row Times", April 9th, 2014, p.7 in an article entitled, "Enbridge gets a piece of Elected Council's mind".  If the statements recorded in this article are correct, then the representatives of Six Nations were arrogant and utterly rude, making accusations and demands that certainly appear to be unwarranted.  It appears that the Enbridge representatives assumed that they were meeting about environmental issues, and were not aware of any "requirements" for consultation and in particular accommodation, and were confused about the nature of the meeting since they assumed it was about the technical aspects of the pipeline process.  This is understandable since no one seems to have taken the time to explain that there is now in place "CAP", a completely arbitrary assumption of powers mimicking those of the weakened (due to the Brantford Injunction) Haudenosaunee Development Institute (HDI) of the Hereditary Council.  Somehow Enbridge is supposed to read minds and know about policies grabbed from the air with which to pummel developers with claims of invalid legal rights.  The lands are not part of the Six Nations Reserve, they are privately owned and have been since the 1830s, and the lands on title in the Cayuga Land Registry Office.  The lands on which the pipeline (Line 11) and Hydro Transmission towers are situated (e.g., Lot 26, Seneca Township) are not even part of a land claim - and even if they were it would be meaningless since the lands were properly ceded in the 1840s.  The Council Chief told the Enbridge representatives that, there has been no accommodation or compensation of any sorts and wondered why, since the pipelines cross two unceded areas of the Grand River which is still under the Haldimand Tract.  My own ancestors held legal title to Lot 26 (claimed by Barefoot Onondaga members) from the earliest days, and so the claim by Council is specious. Perhaps I would be the proper person for Enbridge to consult with.  In working with me they would have to pay nothing, since the lands were ceded over 170 years ago, but I would request assurances that all possible environmental protection measures were in place.  Council is presuming powers that they in fact do not possess, over lands that they do not possess.  The "power trip" over the oil giant was, I am guessing, very pleasing to those who participated - except of course the Enbridge officials who must have wondered if they should be laughing or crying.  It would be truly pathetic if Enbridge caved in to Six Nations on this one - but it may be the lesser of unpalatable alternatives which include being perceived as being "insensitive" to Aboriginal wishes (although Six Nations are not aboriginal to the Haldimand Tract).

According to the article first noted, further "community engagement sessions" are planned.  I hope that Enbridge is aware of the difference between perceived rights and true rights, otherwise they are likely to get taken to the cleaners.  Just the price of doing business?


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