Factional Dispute Between the Six Nations Confederacy and Elected Council Plagues Attempts to Address Problems at DCE Barricade - A Dangerous Twist

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Please see CHCH TV evening news coverage here for the most recent update and key details  Please click on the video news coverage as reported by Al Sweeny.

I want to emphasize that we in Caledonia are once again under virtual siege, and that violence could erupt at any time - it is a powder keg situation where we are dealing with individuals who have absolutely no respect for law and order.
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What follows is a chronological summary of what occurred on a very busy 10 July 2014 - with new information trickling in all day and into the evening.

It might be useful to read the immediately preceding posting to this blog since it gives a lead in to the events of the 9th and 10th of July 2014. 

First Reports:  The "Brantford Expositor" of 9 July 2014 provides an update on the meeting that took place between David Zimmer, Ontario Minister of Aboriginal Affairs; Ken Hewitt, Mayor of Haldimand County; and Ava Hill, Chief of the Six Nations Elected Council (SNEC).  

In an article entitled, Sides in talks over DCE barricade (see here), it is reported that, The meeting at an undisclosed time and place included Zimmer, Infrastructure Minister Brad Duguid, Haldimand Mayor Ken Hewitt and Six Nations elected Chief Ava Hill.

Details concerning the outcome of the meeting were not available Wednesday evening.

Although it is not required by law, and generally proves disruptive to the process, it is noteworthy that a Haudenosaunee Confederacy Chiefs Council (HCCC) representative such as Head Chief Allen MacNaughton was not present.  It can easily be determined why the no show as per the wording here:

The Six Nations Confederacy was invited to send a chief to the meeting, but the day before issued a statement that it “must respectfully decline the invitation to meet with Minister Zimmer, Minister Duguid, Mayor Hewitt and the representative of the Indian Act system” (the Confederacy's terminology for the elected council chief).

“The Haudenosaunee Confederacy Chiefs council have, through the communication protocol established with Ontario, repeatedly expressed their concerns to the province over the disruption of peace that continues to grow from the Crown's side of the Two Row Wampum,” the statement says.
“We would remind Ontario that this issue was dealt with in 2006 when Ontario agreed to remove all third party interests with the purchase of the land in question, without prejudice to our position that the land in question is Haudenosaunee land.

“It is within the authority to Ontario to rectify any outstanding issues with regard to third-party interests that affect Haudenosaunee lands at Kanonhstaton.”

The above was clearly written by someone with formal legal training.  The HCCC / Haudenosaunee Development Institute (HDI) legal representative is Aaron Detlor (a licensed lawyer in Ontario). 

        Interpretation:  So one might infer (particularly in light of previous statements on this subject) that HCCC does not recognize the legitimacy of SNEC despite the fact that the change to an elected system in 1924 was instituted by request of Six Nations progressives, and because the then Council had become severely dysfunctional and seriously delayed any business (decisions) that needed to be conducted with the Government of Canada (e.g., transfer payments, infrastructure, schools).  Calling the duly elected, by a democratic process, Chief Hill a "representative of the Indian Act system" is a very clear indicator of why there will never be agreements until and unless the Federal Government recognizes the HCCC as the legitimate representatives of the people of the Six Nations Reserve.  There are excellent legal reasons why that will never happen, including Court decisions such as Davey et al. v. Isaacs et al. (1974).  However, mysteriously, the HCCC will consistently turn around and blame the Federal Government for failing to negotiate.  It should be obvious that their blaming the Ontario or Federal Government is specious and self serving.  The idea that in this day and age an oligarchy should be given authority over the elected representatives of the people is regressive and counterproductive.  This is not 1714, it is 2014 and we have entered a highly complex modern era where if in this case Six Nations wishes to have the Government institute timely actions, there is a requirement for a representative body that will meet at regular intervals and are prepared to work with Government representatives to keep things working efficiently.  It is Canadian taxpayer dollars which keeps the Six Nations programmes and services (e.g., policing, schools) humming along, and there is a need for accountability, something the HCCC has been unable or unwilling to do (e.g., with respect to the money extracted from developers by the HDI - no one outside this small clique knows where that money goes - a chronic complaint at Six Nations which I have discussed before).

The article continues, stating that, On the morning of the meeting Scott Cavan, a spokesman from Zimmer's office, expressed disappointment that the Confederacy would not be attending it.

“The province intends to proceed with the meeting and remains hopeful the Confederacy will reconsider their decision not to attend,” Cavan said at the time. But the Confederacy did not change its mind.

        Interpretation:  No, the Confederacy / HDI did not change its mind, but for some unknown reason, was gathered together on 9 July 2014 at the barricade blocking Surrey Street, with their legal representative, apparently waiting for someone from the Ontario or Haldimand governments to appear (at least that is the rumour that was going around in that location) to inform them of the meeting or consult in some manner - despite adamantly refusing to participate in any manner.  What is a mystery is that if they wanted to be part of the process, why would they not see it to their advantage to be at the table and have input?  Apparently it gives them license to later complain that they had no involvement so are not bound by any decisions made without them.

Further information, from "CHCH TV", includes what seem to be confusing platitudes offered by the HCCC legal representative as to why they refused to attend the meeting can be found here. 

The "Hamilton Spectator" also has a story about the matter, and notes that Minister David Zimmer was not willing to provide further information about the meeting at this time (see here).  However there are interesting statements from HCCC and as well HDI which speak volumes.  Specifically, Representatives from the Haudenosaunee Confederacy were also invited to Wednesday's meeting, but declined. Hazel Hill, the director of the Haudenosaunee Development Institute, said the summit didn't meet the group's established communications protocol.  The latter statement (bold printed by the present author) shows precisely what Haldimand County Council, developers and anyone has to face - their arbitrary set of "rules" which have no authority in law, and often end up being thinly disguised ways to extort something.  In the past it has always meant paying an "application fee" (usually from $3,000 to $7,000) before anything can move forward.  Ka ching.  Anyone who wishes further information on this arbitrary "protocol" can read more here.

The HDI Director also said that, "The confederacy was put in the lead by the Six Nations people, and so the confederacy is the body to deal with treaties."  

        Interpretation - The Destructive Role of the HDI:  Actually the above statement is not true:

1)  The Six Nations Elected Council is the legally mandated voice of Six Nations.  The Confederacy has, if anything, only "moral authority" and is invited to discussions as a courtesy.

2)  The Ontario Government does not negotiate treaties, that is the purview of the Federal Government.  The matter under review has nothing to do with a treaty (there are no treaties between the Crown and the Six Nations).  The Ontario Government owns the property at DCE and it is registered on title in the Haldimand County Land Registry Office in Cayuga.  Haldimand County is responsible for the roads currently established thereon, including Surrey Street.  How this relates to supposed treaties is "unclear" to me.

As noted in recent postings to this blog, the HCCC / HDI intend to put a fence around the entire Douglas Creek Estates (DCE) property, and turn it into a "gated community" - even though it is owned by the Province of Ontario.  Their goal is to continue the "reclamation" (theft) process, adding the DCE to the Six Nations Reserve (as indicated by the official welcome sign at the Surrey Street entrance to the property).  Actually they consider the property to be theirs, and have attempted to keep all others from even entering the property - when in fact it belongs to the people of Ontario. 

One basic conclusion can be drawn here at this point:

Factionalism ensures that nothing substantive can result from negotiations about the barricade.

The fact is that in most quarters outside the Reserve there is an almost complete lack of understanding of the key factionalism issues that keep Six Nations from acting as a unit.  This is reflected in the Opinion column of "The Sachem" as seen here, where it is asserted that Haldimand County should have consulted with Six Nations before proceeding with the proposed barricade removal.  The harsh reality, the true facts, are that that is impossible because you can at best meet with only one or the other of the Six Nations "governing bodies".  If the Elected Council is consulted, the Confederacy will dig in its heels and refuse to meet with those who consult with their "rival" Elected party.  This has been going on since 1924, and there are absolutely no indicators suggesting even a remote chance that this is going to change any time soon.  Mayor Ken Hewitt and Council understand the dynamic and realize where negotiations lead - down the road to factional disagreement which ensure that nothing will get done.  Often only a lawful unilateral decision can work.  By meeting with the lawfully recognized party at Six Nations early in the matter, they have taken steps to ensure that the only ones that will fault them are those who do not understand Six Nations politics.

Provincial Government's Response is Released:  An update just appeared in the "Brantford Expositor" in an article entitled, Two Ministers claim early success in talks (see here).  Information not included to date here includes the following:

The joint statement by Ministers Zimmer and Duguid states that, their summit with Six Nations and Haldimand County leaders over the ongoing situation at the Douglas Creek Estates was successful enough to keep meeting to find a solution, and further that, “This meeting of the political leadership of the parties affected by DCE is a significant milestone for our ongoing efforts to reach a long-term, sustainable resolution for DCE”.  Furthermore, The political leadership at the meeting committed to meet again later in the summer, and agreed to have their respective staff work on proposals for near-term and long-term issues.

In addition, “Only the settlement of the Six Nations' land claim will provide a permanent and sustainable solution to DCE,” they said.

“We reiterated our call for the federal government to return to the negotiation table.”

The two ministers also expressed disappointment the Haudenosaunee Confederacy Chiefs council declined an invitation to join the meeting.

“We will continue to encourage the Confederacy Chiefs Council to participate in our future discussion,” the statement said.

Further Update from the Brantford Expositor:  Another article appeared in the "Brantford Expositor" later in the day (see here), entitled, Ministers call on Ottawa to restart land talks.  Much of the article is an expansion on the above article in the same newspaper reported earlier in the day.  I will divide the content into three components, relating to the responses of the three parties directly involved in the matter:

a)  Haldimand Mayor Ken Hewitt:  The Mayor has quite a bit to say - as follows:

Haldimand County Mayor Ken Hewitt says he sees signs of hope from a summit meeting held by two Ontario cabinet ministers over the latest Douglas Creek Estates dispute.
 
"It was positive to get a multi-ministerial meeting together so they could hear what we and Six Nations feel about the issues. That in itself was a good start," Hewitt said in an interview Thursday morning.

He was speaking about a meeting he attended Wednesday at an undisclosed location with Aboriginal Affairs Minister David Zimmer, Infrastructure Minister Brad Duguid and Six Nations elected Chief Ava Hill.

"We have to be optimistic that when parties come together and share their opinions, people come to understand each other better," Hewitt said.

He said the meeting contained frank and wide-ranging discussion about the concerns of Haldimand and Six Nations council resulting from the county's decision to remove a barrier on Surrey Street, the entrance to the disputed former Douglas Creek Estates property.

"We left it with the ministers that we both have concerns in our communities," said Hewitt.
"The ministers said they will meet with the cabinet and the premier (Kathleen Wynne) to talk about what can be done to bridge our communities' differences and not have them fighting."

Furthermore, the Mayor said about the parties involved in the meeting, "They're going to work on proposals keeping in mind what's doable from a pragmatic standpoint and a legal standpoint," said Hewitt.

b)  Ontario Ministers Zimmer and Duguid:  Ministers Zimmer and Duguid had similar perspectives of the meeting in a joint statement released early Thursday morning.

"This meeting of the political leadership of the parties affected by DCE is a significant milestone for our ongoing efforts to reach a long-term sustainable resolution for DCE," the statement says.
The ministers, Hewitt and Hill commited to meet again this summer and agreed to have their staff work on proposals for short- and long-term issues.

Furthermore, In their statement, Zimmer and Duguid said all parties in the meeting recognized that a solution can only be found in working co-operatively and in good faith.

"We also recognized the need to reduce the potential for confrontation and risk to public safety," the statement says.

Zimmer and Duguid contended in their statement that one ingredient is essential for a permanent resolution: "Only the settlement of the Six Nations' land claim will provide a permanent and sustainable solution to DCE," they said.

"We reiterated our call for the federal government to return to the negotiation table."

The two ministers also expressed disappointment the Haudenosaunee Confederacy Chiefs council declined an invitation to join the meeting, but said they "will continue to encourage the Confederacy Chiefs Council to participate in our future discussion."

c)  Six Nations Elected Chief Ava Hill:  The article did not note that either Chief Hill or her office had issued any sort of press release.

Hereditary Confederacy Chiefs Council / Haudenosaunee Development Institute:  Although having refused to in any way participate in a meeting where the Elected Council would also be present, the HCCC representatives, the HDI, did issue a press release.  Specifically, The Confederacy council had issued a statement Wednesday afternoon declining to join the meeting, because it didn't meet its established communications protocol.

The council released another statement Thursday, saying it is "concerned for grave consequences that could erupt over the ensuing summer months as the Ontario legislature takes a summer break without returned to the communications protocol and discussions."

The statement also said the Confederacy council considers the DCE land rights issue settled because "third party interests have been removed with the land now registered in the Haudenosaunee Confederacy chiefs Council land registry."

The statement further noted a recent Supreme Court of Canada decision in a land rights case involving the Tsilhqot'in Nation "which determined that band councils do not have the ability in Canadian law to represent the collective rights and interests of the original people of this land."
The Confederacy council urged the Ontario government to return to a communications protocol to resolve outstanding issues.  So the HCCC do not recognize the authority of the Elected Council - that is not new (it has been true since 1924), nor a surprise in the least.

This ruling by the Supreme Court of Canada is being used to re-energize the Hereditary faction and the HDI.  I will include a separate posting with more details on the nature of this development.  First,

Problems Concerning the Above Bold Printed Information:

1)  Statement of the Ontario Government (Liberal Party) representatives: The Federal Government (Progressive Conservative Party) never left the negotiating table until the HCCC (who was there only as a courtesy) began making unreasonable proposals.  The land claims were submitted in 1987, and in 1995 all parties agreed that the surrenders were legal and valid, but that there may have been irregularities in relation to Six Nations Trust Fund monies.  Hence it was about money, not land.  There things rested until 2006, and with amnesia and a sense of self - righteousness, some at Six Nations decided that despite what their own research and legal team had found, it was time to make a demand for land to be "returned", so they embarked on a "reclamation" process.  As to the post 2006 negotiations, it was the Elected Council who bailed out in 2010 (in utter frustration having to deal with the HCCC's demands) leaving the Hereditary Council to carry the ball, however the latter do not have a legal mandate to negotiate for Six Nations.  The negotiations at that point fell apart when the HCCC failed to be in any way reasonable in their demands with the Federal Government who thus were forced to withdraw as the Elected Council had. 

2)  Statements of the HCCC / HDI:  We who live here well know what "grave consequences" means - in other words violence, and disruptions be they work stoppages or blocking roads.

The "communications protocol" is a sick joke.  The HDI consistently make outlandish declarations.  They are claiming facts that are not true, entitlements to which they are not due, and powers they don't possess - all the while threatening that if they don't get their way there will be dire consequences.  Nothing has changed,  This group, which has been fined by the Superior Court of Ontario for their illegal and shady activities is still demanding concepts originating in the mind of their legal representative such as conforming to their "communications protocol" - or else.  This has been their modus operandi since 2006 to extract as much money as possible from for example developers.  I have included specific information about this behavior in many previous postings to this blog.  The bottom line - what does it take to have the goons go away and work stoppages end?  Answer - payment of the "application fee" (generally between $3,000 and $7,000).  They seem to have suffered a major blow with the judgment (injunction) of  Justice Harrison Arrell of the Brantford Superior Court in 2009 fining them and associates over $800,000, later dropped to $350,000 and finally a settlement for $125,000.  While this appears to have been a setback, the new ruling relating to the Indian Nation in BC has been over interpreted to somehow apply to Six Nations.  Anyone who would buy into this assertion would be very naïve indeed.  As ridiculous as it may be, the matter will probably have to be tested in Court.  My sense of all this is that they are going to get caught in the lie, and again with their hand in the cookie jar since there is nothing to support their claims of a requirement to follow their "communications protocol" other than brash bravado.

As to the HCCC land registry, while there may be a HDI land registry, it is as legal as one I might chose to set up tomorrow.  It is extremely presumptuous and a lie to say that the land no longer belongs to Ontario and is now in their Land Registry. What would happen if my extended family decided to "reclaim" lands along the Grand River that once belonged to our family, ejected the people who owned the land who possessed a deed registered in the Land Registry Officer in Cayuga, then began erecting a fence around the property?  I can guarantee that we would all be instantly arrested and face a series of charges in Court.  It is 8 years now and the HDI (a step child of the DCE "reclamation") has never relinquished their false claim to the DCE property and have remained "in control".  The ONLY difference between the HDI and my extended family is that the former have government issued "status cards" and recognized as "special" under the Indian Act of 1876; the latter group at this time does not have "status" nor fall under the provisions of the Indian Act (which ironically tends to be "hated" by the very group that is profiting from it).  Is this fair or just?  The objective answer is that it is a reflection of a two-tiered system where one group of Canadians has rights and "entitlements" not given to others.  If that is fair, I don't understand the meaning of the term.  I have spent 40 years studying for example the Two Row Wampum, Covenant Chain, 1763 Proclamation, Haldimand Deed (of occupation), and all the surrenders from the 1780s onwards to 1850 - topics "status" people do not expect "non status" people to know and understand.  I am not giving opinions pulled out of the clouds in this blog, but rather an assessment based on all of the facts pertaining to the matter.

In an article in "The Hamilton Spectator" of 11 July 2014 entitled, Six Nations Confederacy warns of "grave consequences", we learn further assertions of the HCCC / HDI in relation to the land.  They state that, "The land is now under the sole jurisdiction of the Haudenosaunee Confederacy Chiefs Council" said the statement issued by the Six Nations Iroquois Confederacy of the Grand River Country.  Sole jurisdiction?  I wonder what the Elected Chief Ava Hill has to say about this.  Also the name appended to the press release is brand new.  To the best of my knowledge it has never been used before.  Clearly the HDI are stepping up the pace and trying to turn the screws to exercise power they do not lawfully have - using threats and intimidation as their weapons of choice.

In summary, the Federal Government has repeatedly stated that Six Nations do not have any valid land claim which would result in the return of or payment for land - all surrenders were legal and are valid.  At least three Ontario Superior Court Judges have ruled that if the land claims were to go to Court, Six Nations have only the weakest possible case.  Again, there are possible issues related to the fiduciary responsibility of the Government - so the only wiggle room is over money not land - as well the legal representatives of the Elected Council knows.  However, the legal representatives of the HCCC, if they do know it, in other words are aware of the results of the research of the Lands and Resources Department and previous negotiations, do not accept it.

Latest Update:  "CHCH TV" on 11 July 2014 includes a report that, Province asks Ottawa for help in Caledonia (see here).  An example of the content is, Duguid says he’s hoping for a solution in the coming months, but is looking to Ottawa for support: “At the end of the day, the federal government has not done enough. It’s time for the federal government to do more. Disagree with that as well.” 

"The National Post" of 11 July 2014 provides more details (click here) of the Ontario Government's wrongful accusation of Federal Government inactivity in this file as follows:

It’s Ottawa’s fault that a Six Nations confederacy is warning of “grave consequences” this summer if Ontario continues talking with other groups about access to disputed land in Caledonia, Economic Development Minister Brad Duguid said Friday.

“I think that the responsibility for any consequence rests with the federal government, who is refusing to get to the table right now and solve that land claim,” Duguid told reporters. “That’s really the crux of the challenge.”

The province will do all it can to restore harmony in the area, such as meeting with the elected chief of the Six Nations, to discuss restricting access to the Douglas Creek Estates, but only Ottawa can deal with the land claim at the heart of the problem, added Duguid.

“The single most significant way that we can move beyond these challenges is for the federal government to get back to the bargaining table and settle that federal land claim,” he said. “That’s really the reason for the discontent, and the uncertainty that creates in the community.” 

Sorry, but the ball is in the Ontario Government's Court, and must use its Courts and the Provincial police force to quell the problem.  The above is nothing more than a classic example of "passing the buck".  The Federal Government at the moment has its hands tied due to the negotiation process of 2010 where the Elected Council left the negotiating table, leaving the Hereditary Council to carry on - but it has no legal authority and so anything that might have emerged has no weight in law.  The Hereditary Council don't want to negotiate (I have spoken to they and their supporters, they only want confirmation that the land at DCE is theirs and that their private HCCC "land registry" has supplanted the Ontario Land Registry system - which of course is absurd. 

Right now, in the midst of the "Caledonia crisis", and event of their own making, the Haudenosaunee Confederacy Chiefs Council (HCCC) must be wringing their hands in glee.  By sheer chance a new ruling has come from the Supreme Court that they (meaning their legal representative) has deemed also applies to them.  In a nutshell, their perception is that it is the law of Canada that there is no requirement for the Government of Canada or the Provinces to work only with the elected band councils (mandated by the Indian Act of 1876 and revisions) - these bodies must also consult with the "wider community".  There are some rather large flies in the ointment here, and a lot of assumptions, as far as Six Nations goes - but it is full steam ahead for the HCCC and their henchmen.  So just what is this new ruling that the HCCC applies to them?

Bottom Line:  The Ontario Government clearly does not understand that the Federal Government cannot do anything, by law, until the Six Nations Elected Council opts to return to the negotiating table.  In other words the "Feds" hands are tied.  So the answer is to "cave", and give in to the terrorists?  The threats are now coming from HCCC about "grave consequences" if Ontario does not negotiate with them (despite the HCCC adamant refusal to negotiate with Ontario only a few days previous).  NEVER negotiate with terrorists, NEVER give in to threats - it will seriously backfire in the long run.

The HCCC and HDI will torpedo the entire process - mark my words - the latter include dangerous thugs bent on enriching themselves, and who have shown that they will stop at nothing to get their own way.  It seems that the Elected Council needs to step up to the plate and assert their rights.  If they fail to do so, the Federal Government needs to stop all monies (our tax dollars) being sent to Six Nations until the matter is sorted out.  If the Government caves, they could be placing land in the hands of the criminal elements poised on the doorstep of our community - a community which has suffered so much pain in the last 8 years.  Can we expect to see ever more cigarette shacks selling contraband tobacco, or perhaps a casino?  It would be the ultimate slap in the face, and would open the door, set a precedent, to permit the violent assertion of non existent rights across Ontario.  We MUST draw the line in the sand here.  NO MORE.

DeYo.