Thursday, 26 June 2014

Legal Representatives for All Parties Agree, Six Nations Have No Valid Claim for Land, Only Money

It appears that there is a major disconnect between the legal teams representing Six Nations in so called "land claims", and some or most of the Six Nations members.

If you ask, as I have, any Six Nations member who shows up at the former Douglas Creek Estates when for example Gary McHale makes an appearance, what the true concern is, they will say the return of "stolen" land.  Many or most are under the impression that the Haldimand Deed gave them (or should have given them) rights as a sovereign people to do with the land as they pleased.  Thus they reject (or do not understand, or are unaware of) repeated rulings by various levels of the local, Ontario and Canadian (formerly Crown) Courts as it relates to land ownership.  So once again, perception rears its ugly head and many people are completely misguided because they not only do not know the legal rulings, but neither the facts upon which they are based.

In the video clip of the interview of Sun News with Gary McHale (25 June 2014), the latter asserts that time and again the Courts have universally agreed that disagreements relating to the land claims submitted by Six Nations in 1987 are not about the legal title of land ownership, but only about monetary compensation for perceived damages dating back 170 years.  It is time for me to make further specific inquiries.

Historical Record from 1841:  I have spent considerable time presenting the facts (documentation arising from the time before Confederation in 1867) which are freely available at the Library and Archives Canada (with microfilm copies at the Woodland Cultural Centre near Brantford) in various postings to this blog.  I have seen the original documents and assessed the content of the Council Minutes accompanying each surrender, the surveyor's records, the land inspection returns, and as well have obtained copies of other relevant documents such as the personal papers of the "Colonial" officials (e.g., Superintendant David Thorburn) charged by the Crown with the responsibility of ensuring that the duties of the Crown to the Six Nations are properly maintained.  My efforts have shown that there are no irregularities in the surrender of the lands within the Haldimand Tract with the exception of those parcels that the Chiefs, during the 1840s, wished to have set aside for the Six Nations as a Reserve so that they could live together as a people.  At the time there were farms and communities of White people.  Some of the White and Black people were mere squatters with no legal title, others had purchased the "improvements" of one or more Six Nations members and had deeds from them, and there were those who had legally recognized Patents stemming from 999 year leases granted by Chief Joseph Brant who was given Power of Attorney by the Six Nations Chiefs.   The result was that there were Six Nations groups interspersed as a patchwork quilt along the Grand River, extending back to the line shown in the survey accompanying the Haldimand Deed (1784) and Simcoe Patent (1793).  The record shows that the Government officials were concerned that the Six Nations would be so scattered that their existence as a community was in jeopardy.

The Six Nations Chiefs in 1840 were well aware of the problem, and in many cases frustrated not only at the White squatters, but their own people who made a practice of hopping from plot to plot of land, selling each after clearing a few acres then moving on to repeat the process.  The result was a demographic shift whereby there were as many non-Natives as Six Nations members residing on the Grand River Tract.  The only viable solution, other than moving west to unoccupied lands on for example Manitoulin Island en mass (an option that was considered), was to consolidate.  Since no one considered mass eviction of Whites as a viable solution since the large number of residents would need to be compensated for their improvements, and the monies taken from the Six Nations Trust account to pay for it. 

As I have noted before, the single most comprehensive published source on this subject, which includes copies of the original documents, is Charles M. Johnston, The Valley of the Six Nations: A Collection of Documents on the Indian Lands of the Grand River, Toronto, The Champlain Society, 1964.

On 5 January 1841, the Superintendent of Indian Affairs in Upper Canada, Samuel P. Jarvis, provided a very thoughtful consideration of all of the issues relating to the decision to form a compact Reserve in his presentation to a delegation of Mohawk Chiefs at a meeting in Toronto.  While Jarvis has been criticized for his handling of the Trust Account, it was his assertion that the lands should not be assigned in fee simple that resulted in a Reserve which boasts of vibrant Six Nations community to this day.  Had the lands been granted to each head of family in fee simple, the individuals had every right to sell their lands to the highest bidder.  This is precisely what happened in a number of American jurisdictions with the result that today there is no Reserve lands, or only parcels of land scattered randomly among the holdings of non - Members.  Jarvis suggested that all Six Nations families should have the right to remain on their present holdings, and move to the consolidated Reserve at a later date if they so chose.  So all of the available lands would be assigned to the Crown to be sold and the monetary advantage given to the Six Nations, with the exception of the farms at present in their actual occupation and cultivation, and of 20,000 acres as a further reservation (p.191).  The Chiefs at this time were in agreement, but asked that lands in the Johnson Settlement  be exempted unless conforming to their specific wishes.  This stipulation would change before everything was finalized prior to 1850.

On 18 January 1841 the "General Surrender" or "Surrender of Lands by the Six Nations" was read to the Chiefs and Warriors of the Six Nations upon the Grand River in full Council assembled at Onandaga Council House.  It was signed by members of each Nation (including two Mohawks).

Although the initial agreement, which is accepted to this day by the Federal Government of Canada as a binding agreement, stated that 20,000 acres would be reserved such that every head of family could be assigned from 100 to 200 acres of land, the Chiefs changed their minds many times between 1841 and 1848 when agreement was reached in the last remaining parcel (the Burtch Tract).  The total "land mass" which comprises the Six Nations Reserve today is about 46,000 acres, which is over double the amount noted in the original agreement of 1841.

Ultimately the choice was made of lands where there were no Brant Leases, and evicting the relatively few individuals residing there would make this choice of the primary focus of the consolidated settlement the most reasonable.  The initial choice, one that met the criteria, was Tuscarora Township.  Over the years between 1841 and 1848 there was a lot of back and forth, and ultimately the final choice was Tuscarora, plus lands between Onondaga and Middleport in Onondaga Township (both in Brant County), and a single strip of land six lots wide at the far eastern margin of Oneida Township in Haldimand County.  Finally there was a 200 acre parcel known as the "Glebe Lands" around the Mohawk Institute and the Mohawk Chapel - which remain as part of Indian Reserve 40 (Six Nations), noted as 40b. 

Evidence for the Surrender of DCE / Kanonhstaton in 1845:  The best source for the primary source documentation of each transaction between 1841 and 1848 is the 2009 report to the Corporation of the City of Brantford by Joan Holmes & Associates as found here.  It should be noted that the  contentious lands along the Plank Road, the subject of so much acrimony today, including the location of the former Douglas Creek Estates, are specifically noted as being surrendered to the Crown on 17 September 1845 by the 66 Chiefs in Council who signed the document. 

Land Claims in 1987:  Six Nations made no further claims on this land until the submissions by the Land and Resources Department of the Six Nations Band Council in 1987 (see here). 

What Changed in 1995?:  By 1995 it was evident to Six Nations legal representatives that there would be no return of lands that were now lawfully patented by Crown Deed, and that the only recourse to any perceived and proven claims was monetary compensation (see here).  This has not stopped certain radical elements at Six Nations for making false claims of lands that were improperly sold and therefore must be returned to the Six Nations forthwith.  This despite the opinions of their own Counsel, and the facts as available in the archived documents.

Since 1995 Has the Federal Government Reaffirmed its View that there is No Validity to the Plank Road Claim(s)?:  The answer is yes.  For example in 2006, Federal Government representative Monique Dorion stated in no uncertain terms that, Ottawa was firm that there was no validity to the Plank Road claim (Christie Blatchford, Helpless: Caledonia's Nightmare of Fear and Anarchy, and How the law Failed All of Us, Toronto, Doubleday Canada, 2010, p.137).  Three years later,

"In a letter dated January 9, 2009, Chuck Strahl, the federal Minister of Indian and Northern Affairs Canada said “the Government of Canada’s position is that the surrender of 1844 is valid”." (see here, p.11).

A Recent Court Case that Applies Directly to DCE / Kanonhstaton:  Evidence that to this day, the situation remains the same can be found in recent Court Injunctions issued against those who were blocking legal and lawful work on lands traceable back to a Crown Patent by developers who were attempting to build homes on their land.  A good example can be found in the conflict over Plank Road lands in Hagersville owned by John Voortman, and in the process of being developed by him.  He and his contractors were stopped from doing any work between October and December 2008 by the Haudenosaunee Men's Fire (HMF) led by Chief Alan MacNaughton.  Ultimately Mr. Voortman took the matter to Court and the following findings were made.  Only the key clauses are included.  The case was heard by Superior Court Justice Joseph Henderson, 3 April 2009.  The proceedings and conclusions have direct implications for the lands at DCE.  The full transaction can be found here:

[49] The position of the Six Nations Council is set out in their letter to Voortman’s counsel. Essentially, the Six Nations Council takes the position that the aboriginal interest in the land in the Hamilton-Port Dover Plank Road land claim was never lawfully surrendered to the Crown. But, in the legal action there is no claim for an interest in the land. That is, the Six Nations Council do not make a legal claim for possession of or return of the land. Rather, the 1995 legal action claims an accounting for all revenues that the Six Nations people should have received from the land.

[50] In summary, the Ontario Court of Appeal has found that there has been no conveyance of title to the Six Nations people, and the two recognized governing bodies of the aboriginal people, namely the Six Nations Council and the Six Nations Chiefs, have not made any claim for title to or possession of the property.

[51] Moreover, even if the HMF have the authority to speak on behalf of the Six Nations people, I note that there is no claim made by the HMF in this action or in any other action for the possession of or return of this property. The only request that the HMF have made with respect to the return of the lands is the demand that was made of Mr. Voortman Sr. at the meeting of December 21, 2008.

[52] Therefore, I find that there is no merit to the suggestion that the Six Nations people have a right to ownership of the property. I find that if there is an aboriginal claim it is for compensation for the loss of the usufructuary right regarding the property, not for title to the land.
[56] In the present case Voortman can trace its title back to the Crown Patents, and therefore, pursuant to the Chippewas case, Voortman’s title is presumed to be valid. That presumption is acknowledged by the Six Nations Council in its letter to Voortman’s lawyers. Moreover, even if the surrender of the Hamilton-Port Dover Plank Road land in this case is found to be invalid, given the decision in the Chippewas case, it is very unlikely that the court would set aside the Crown Patents.

[57] Therefore, I find that Voortman has a strong case to show that it is the legal owner of the property, and that Voortman is entitled to exercise its rights as the property owner. The arguments to the contrary are weak, and even if successful would not result in any change in the registered ownership of the property.

[76] I now wish to summarize my findings with respect to whether there is a serious issue to be tried. I accept that Voortman is the registered owner of the property and therefore is entitled to exercise its rights as owner. I accept that the Six Nations people have an ongoing claim regarding these lands, but that claim is not for title to or possession of the lands; rather it is for damages.


[84] Before I conclude I would like to emphasize the rule of law. All people in Canada are governed by the rule of law as confirmed in the preamble to the Charter of Rights and Freedoms. That is, all people in Canada are required to obey the law. As a corollary, all people in Canada are entitled to know that every other person in Canada will be required to obey the law. If any person in Canada does not obey the law, the courts will enforce the law. In that way the public has some assurance that they can live in peace without fear of those who might choose to disobey the law.

[85] In the present case the representatives of the HMF delivered a message to this court that they did not accept the court process. Moreover, there was a veiled threat that if an injunction were to issue the HMF would have no choice but to continue their tactics of intimidation and criminal and civil disobedience. That threat does not alter or affect my decision today.

[86] The HMF clearly have a choice. An injunction will be issued today. The HMF may choose in good faith to abide by the injunction, live within the criminal and civil law, participate in peaceful demonstrations, and pursue whatever claim they believe they have through their own negotiations and/or court actions. They are not compelled, as was suggested, to disobey the injunction and engage in further criminal and civil misconduct.

[87] The rule of law means that the HMF will be required to obey any court order, just as any person in Canada would be required to obey a court order. The assertion of an aboriginal right does not permit any person, aboriginal or otherwise, to break the law.

[88] For all of the aforementioned reasons I find that Voortman is entitled to an Order for an interlocutory injunction restraining the defendants from entering onto the property and from obstructing Voortman’s development of the property.

[89] I also declare that Voortman has title to and is the owner of the property, and as such is entitled to exclusive possession of the property. I make this finding so that no other group can come forward to occupy the property as the putative land owner.

[90] This Order will be enforced by the Sheriff of Haldimand County with the assistance of the O.P.P. I also order that Voortman and its designates may use reasonable force to prevent any person from trespassing upon the property, and to remove any trespasser from the property in accordance with the provisions of the Criminal Code of Canada.


So the simple question is, WHY ARE THE ACTIVISTS STILL OCCUPYING DCE AFTER 8 YEARS?  They are clearly contravening the law, and there is no possibility of the land being returned to Six Nations (the HCCC).  The above "Statement of Claim" of 1995 makes it evident that the only compensation that could be forthcoming to Six Nations is money.  The legal representatives of the Six Nations Elected Council have concluded that this is the only viable course of action.  Alas this does not stop rogue members from finding their own path and followers.  In particular, despite the ruling against the HCCC and Men's Fire, the Hereditary Council seems to have a short memory (from 2009) when they were given the clearest possible message via the Courts that their claim to land was without merit, and the Courts would not overturn what is registered in the Ontario Land Registry.  The only recourse is to push forward with monetary claims.  Of course the goal of the HCCC, and particularly their radical / enforcement arm, the Haudenosaunee Development Institute (HDI) is to twist the arm of the Province of Ontario and have the actual land at DCE returned to them as Reserve land.  If that ever happened it would make a travesty of the justice system, which to date has upheld the rights of land owners whose deeds can be traced back to Crown Patents, to ownership free of interference by groups such as the HMF. 

It would appear that without a shadow of a doubt, the legal and moral obligation of the occupiers is to remove themselves immediately and allow the legal system to determine whether there is any merit in the claim for monetary compensation for a matter extending back 170 years.  That is for the Courts to decide.


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