By Lynda Powless
An intervenor hearing, on Six Nations Elected Council’s (SNEC) massive land rights case, scheduled to start Monday, has been delayed for 24 hours, after the Haudenosaunee Development Institute requested a case management conference .
The request came after court filings showed Ontario lawyers tried to remove both the HDI and the Haudenosaunee Confederacy Chiefs Council (HCCC) from the action while Canada supported their presence.
After receiving the filings, Gilbert Law, on behalf of the HDI, (HCCC) asked the judge for a case management conference.
“We, on behalf of HDI, had written the judge to ask that a case management conference be held, to at a minimum, address timing issues with the motion and secondly to see if the court could assist in resolving some or all of the issues before the Court,” HDI lawyers explained.
The HDI is seeking to be named representatives of both the Haudenosaunee Confederacy Chiefs (HCCC) and some “80,000” Haudenosaunee peoples now unrepresented in the action.
The request came after legal motions from Canada and Ontario in response to the HDI’s intervention were filed.
The case conference will involve HDI, Ontario, Canada, Six Nations of the Grand River and the Mens Fire group is scheduled to begin Monday at 11 a.m.. The Six Nations Elected Council (SNEC) had offered bus transportation and hotel rooms for any Six Nations people wishing to attend the hearings. There will be no buses Monday as a result of the case management conference taking place.
Here is what is being argued:
Canada, in its filing, said the HCCC not only needed to be heard but in fact were the governing body in place at the time the “events or transactions were occurring from 1784 to the 1920s.”
Canada said the HDI issues “raised and remedies sought” all relate “geographically and historically to the Haldimand Tract lands. Almost all of the claims are based on events or transactions that occurred in the more than 130-year period from 1784 to the early 1920s.”
Canada argues the traditional and historical Haudenosaunee perspective should be heard.
Canada’s filing says the HCCC makeup is a Council of Chiefs and Clanmothers and added that it “conducts its affairs in accordance with the traditional cultural values, and the legal principles and processes of the customary law of the Haudenosaunee. The Council is based at Grand River within the Haldimand Tract lands.
Canada’s filing says evidence indicates that traditional Haudenosaunee law principles and processes were operating and guiding Council decisions within the Haldimand Tract lands at least through the period that is the subject of the majority of the claims made in this action.”
Canada’s submission indicates the question at the heart of HDI’s motion is how to ensure the “traditional and historical Haudenosaunee perspective on the claims, rights, and interests put forward is available to the trial court.”
It also reminded the hearing the Supreme Court of Canada itself has repeatedly emphasized the importance of hearing and considering Indigenous perspectives when deciding cases affecting Indigenous peoples.”
Ontario responded to HDI’s court filing charging HDI “does not possess “legal capacity” at Ontario law.
However Ontario does not object to the HCCC putting another representative forward, as long as that party is a natural person, a corporation or a body “which has been given that capacity by statute.”
SIX NATIONS BAND COUNCIL
Six Nations of the Grand River Band says that HDI’s intervention is an “ill-defined attempt by aggrieved traditional hereditary chiefs of the Haudenosaunee Confederacy to abuse the court’s process and disrupt the Six Nations of the Grand River Band’s efforts to obtain justice for the loss of its reserve and financial resources.”
The Men’s Fire responded again charging the HDI was not properly appointed by the HCCC and is “outside the circle.”
The HDI had responded to the Men’s Fire filing earlier saying the group was small from 3 to 10 men and that has for years, been moving to obstruct HDI’s legitimate operation as a delegate of the HCCC through a variety of moves including; civil actions based on the same allegations, at one point, two members of the group were found guilty of assaulting HDI director Aaron Detlor. At that time the Court found as fact that “Men’s Fire has a very small active membership”
HDI charges at the basis of the group’s move to intervene is that they are confused., or at worst vindictive.”
The group has identified itself only as a “collective of Haudenosaunee people that represents all reserves and men across Turtle Island.”
The group at the same admits it does not speak for the Men’s Council of Oneida of the Thames.
The HDI response to the Men’s Fire Filing says the “HCCC has publicly clarified that the small group does not have any authority of the Chiefs or Clan Mothers.”
The HDI maintains it is the same small group of individuals that are behind the current motion, seeking once again to fulfil their stated goals of “diminish[ing] the influence of HDI” and “cutting the head off of HDI”.
At the same time the HDI filing also says the “Men’s Fire agrees with HDI that the Haudenosaunee people (i.e., all of them, not some of them) are the collective rightsholder in this case. It also agrees that the issues should be determined by a representative of the Haudenosaunee, determined at Haudenosaunee law. “
The HDI filing also says the Men’s Fire is in “direct contradiction of its in position,” has vocally supported the plaintiff band and band council, which admits it is not representative of all Haudenosaunee, only of its band list—a small fraction of the Haudenosaunee—and (ii) “outside the circle wampum,”, the very basisor Men’s Fire’s objection to HDI.”
The result of the group’s argument, the HDI filing says is that “the practical effect of what Men’s Fire seeks is that the interests of the Haudenosaunee at large will be unrepresented in this case.”
HDI seeks to represent
The HDI response says Haudenosaunee interest is at issue and will be affected by the court action, and the HCCC, through its delegate, HDI has come forward to represent those interest.
To dismiss the HDI, the HDI filing says, means the court is pre-judging the issue of the collective rightsholder, while jeopardizing the rights of 80,000 Haudenosaunee people over the “untenable but predictable objection of a handful of men that have been obstinately opposed to HDI for nearly a decade should be no bar to that.”
Discussions will centre around the HDI
Under discussion Monday (May 8, 2023) with plans to begin hearings on Tuesday if resolutions are not reached will be:
The HDI /HCCC motion maintains the HCCC is the collective of Chiefs of the Haudenosaunee Confederacy that has been gathering at Ohsweken for more than 230 years.
It maintains it is empowered by, and responsible at Haudenosaunee law to protect the interests of all Haudenosaunee.
The HCCC is seeking to have those interests represented, in the action, through the Haudenosaunee Development Institute (HDI), a delegate it says it formed and appointed for the intervention pursuant to Haudenosaunee law and practices.
The HDI is seeking two orders:
(a) an order granting HDI leave to intervene as a party or, alternatively, adding HDI by joinder and (b) an order appointing HDI (i) as a representative of the HCCC and (ii) as a representative of the Haudenosaunee Confederacy .
It says the Band’s legal action seeks relief flowing from the Crown’s breach of its fiduciary and/or treaty obligations, including under the Haldimand Proclamation of 1784, a proclamation that will be interpreted at trial.
The HDI/HCCC argues-the Haldimand Proclamation concerns rights of the Haudenosaunee Confederacy.
It says the SN band’s elected Chief admits that rights under the Haldimand Proclamation extend to people beyond their band list.
HDI/HCCC argue the band’s expert evidence in the action “characterizes the Haldimand Proclamation as reflecting promises to the Haudenosaunee,” but the “Haudenosaunee Confederacy does not have a voice in the litigation. “
It describes the SN band as an Indian Act band comprised of members on its band list, a band list controlled by Crown-Indigenous Relations and Northern Affairs Canada. The HDI/HCCC argues SN Band is not the Haudenosaunee Confederacy. It does not (and does not purport to) represent the Haudenosaunee people, a group “far outnumbering” the plaintiff band.
Instead, the HDI/HCCC argues the band plaintiff seeks the benefit of the Haldimand Proclamation for only its members, to the exclusion of about three quarters of the Haudenosaunee population.”
The HDI/HCCC argue the HCCC has a responsibility to all Haudenosaunee people, “an important constituency that is not presently represented in the action: the Haudenosaunee people at large.”
In seeking to have the HDI appointed as their representative the HDI/HCCC argument is that the HCCC chiefs were “never supposed to be the ones to deal with external affairs”.
It says historically and today, they speak with foreign governments and through centuries-old practice, select delegates, in this case the HDI, to deal with this litigation, it is
seeking to have HDI added as a party to the action to represent Haudenosaunee interests.
The intervenor hearing is expected to begin in Toronto Tuesday. They had been scheduled to begin Monday 9 at 10 a.m. Six Nations Elected Council had offered buses and overnight stays at hotels in Toronto to band members wishing to attend the hearing. The hearings are also being streamend live on YouTube.