Six Nations of the Grand River’s multi-billion dollar land rights case is being held up by those seeking intervenor status
By Turtle Island News staff
TORONTO-Six Nations Elected Council’s (SNEC’s) 28 year old land rights court case could be stalled for another 35 years if the courts allow the Haudenosaunee Development Institute (HDI) to gain intervenor status in the case SNEC’s lawyer says.
SNEC lawyer Robert Janes told an Ontario court Wednesday allowing the Haudenosaunee Confederacy Chiefs Council (HCCC) into SNEC’s lawsuit would result in costly delays.
He urged the court to consider “the human cost of delay” saying a “typical Aboriginal case” can take from 5-6 years.
But, the SNEC land rights case, as it currently stands, without intervenors, he said could take three to 10 years, but with additional partners joining it could be 35 years before it now gets to trial.
He said including HDI would be time consuming and costly for all parties involved and would “prolong the investigation.”
Janes told the court if HDI is allowed intervenor status “strict guard rails” needed to be imposed that would excludes issues about who is entitled to the land claims.
Lawyers for SNEC, the Men’s Fire, HDI and HCC, Ontario and Canada headed into the second day (May 10th) of intervention motions seeking to be part of SNEC’s land rights case questioning, among other issues, who the beneficiaries of the Haldimand Tract are and who gets a say.
The hearing is playing out at the Superior Court Building, at the Courthouse on 330 University Avenue in Toronto, and was being broadcast via Zoom.
SNEC lawyer Robert Janes told Justice Jasmine T. Akbaral under “Canadian law” someone other than the Chief does not qualify as a representative of the Haudenosaunee Confederacy Chiefs Council (HCCC). He also said that under “Canadian law” HDI does not fit the court’s requirement of being a person or an organization needed to fulfill the role.
Janes argued the Two Row Wampum tells the Haudenosaunee Confederacy, according to their own laws, it should not get involved in Ontario or Canada’s courts.
He also told the court there is
“no harm in (HDI considering itself) being bound (by Canadian law)” because if they attend an international court they would have to show that they exhausted the domestic court systems.
Janes said the HCCC had decades to join the SNEC case including in 2016 when the United Nations Declaration on the Rights of Indigenous People (UNDRIP) removed “subjector” status and Canadian laws supported UNDRIP.
Janes said if the court allows HDI intervenor status it should require a Chief or Clan Mother to be named as delegates along with an affidavit vouching for their “suitability.”
Janes SNEC is being as a “Colonial Canadian institution imposed “ over the objections of the community and is an “unjust narrative.”
Instead he said evidence shows there were divisions and debate within the Six Nations community about governance practices before SNEC was placed into power by the colonial government in 1924.
Janes claimed that HCCC has acted as though their “way was the only way” and has not engaged with the community members or elected council.
He argued that under their own laws, HCCC does not have the authority to name HDI as their representatives.
How many people are in your group should not be a reason to deny anyone intervenor status Men’s Fire lawyer Jeffrey Kaufman told the court .
The Men’s Fire is objecting to HDI inclusion in the case.
Kaufman responded to HDI’s claim that because they have few members and should not have intervenor status.
Kauffman said the group has signature books that show they have regular meetings and the case should be about how familiar you are with the issue not about how many numbers of people there are.
Kaufman spoke briefly about the origin of the Men’s Fire group saying under Haudenosaunee law, the men have their own fire and the women have their own fire. If they perceive there is wrongdoing, it is their (the Men’s Fire) responsibility to go to the women, and then Clan mothers go to the Clans to decide their own issues.
He said the Clan mothers are there to supervise the Chiefs. Chiefs are not elevated above anyone else.
He said Under HCCC law the HDI does not have the “authority on their own” to claim they were chosen in a court of traditional Haudenosaunee law.
Kauffman accused HDI of looking after their “private pocket” and not looking out for the interests of the people and is acting in ways that contradict the Great Law.
He said the Great Law of Peace does not support a decision making model where one nation can impose decisions on another.
Kaufman pointed out that everyone agrees that oral tradition passed through the Elders is the most appropriate way to understand the issues at stake. He told the court the Chiefs are required to submit their decision to the people and all Confederacy people then decide matters together. He argued that process did not occur with the appointment of the HDI.
Kauffman told the court funds available to HDI were not used for community housing, which was one of the stated goals of land acquisition for HDI.
HDI FIGHTS BACK
HDI Lawyer Colin Carruthers said the Men’s Fire ignored expert evidence, and that what was done by HDI was done in accordance with Haudenosaunee laws.
He said the Men’s Fire was relying on unproven allegations and that HDI has made extensive information available about their finances to the court and to the public.
Carruthers said the testimonies of the two experts who attended the court proceedings, both Richard Hill from HDI and Paul Delaronde of the Men’s Fire testified Haudenosaunee laws are not matters which the Canadian court can rule on. He said the arguments presented by Kaufman that HDI is not properly constituted or an appropriate representative of HCCC do not hold water.
Ontario’s lawyer, David Tortell, stated that Ontario takes no position on HCCC and HDI’s motion to intervene. But they had comments to add related to previous court rulings.
Tortell said HDI did not have legal capacity to represent HCCC.
He said as an unincorporated institution, HDI does not have “legal capacity” because in order to have that status, HDI must be a legal or natural person,or they would need something called a “statutory provision.” He also stated that HDI’s use of UNDRIP to support their claims was too broad.
Tortell said Ontario’s issue with UNDRIP is its a non-binding tool, and that it is an “aspirational” tool of law (according to a recent Alberta court ruling).
Canada’s representative Katrina Longo told the court the HCCC should have a representative, and it was a “reasonable proposal” to offer a different representative (other than HDI, which Longo said had not demonstrated itself as an appropriate representative).
She said for Canada the question is how can that person be included without jeopardizing the findings.
She argued that three “appropriate guardrails” must be put in place that limit HCCC’s involvement.
HCCC engagement should be limited to evidence of perspective on the issues.
They should not be allowed to advance new claims, she said. That representative would be seen in the eyes of the court as a representative for HCCC, and not the Haudenosaunee people. Longo also stated that participatory rights could and should be determined by case management.
Longo said the HCCC should be allowed to enter as intervenors rather than joinders.
The HHDI’s lawyer Gilbert told the court SNEC’s use of the Indian Act to support the band’s exclusive beneficiary status regarding the Haldimand Tract is against (Indigenous) sovereignty and does not deal with title.
He said the Indian Act created division and disputes among Indigenous communities, “It wasn’t about the Haldimand Tract….It’s simply about who administered what under the Indian Act.”
Gilbert said there were holes in SNEC’s membership argument, since at the time of the Haldimand Tract many people moved, and many people were deceased before they or their family could receive benefits they were promised under the Haldimand Tract. He said those were issues the court will have to eventually address.
Gilbert also revisited the testimony of Elected Chief Mark Hill to contend that the Haldimand Tract (even according to Hill) involved more people than the Six Nations band list.
Gilbert told the court a meaningful interpretation of the Haldimand Proclamation, is critical to this case.
Gilbert turned to the modern interpretation of treaties saying any matters that are under debate or unresolved,
should be in favor of the natural signatories. This includes the issue of who the rights of treaty lands pertain to. Modern court cases’ rulings demonstrate that this must be resolved in favor of the signatories (who were the Confederacy Chiefs).
Gilbert contends that SNEC’s current position is a restricted narrow interpretation that excludes voices.
He said if HDI’s motion is approved, and if HCCC is able to join the SNEC case, there should not be guardrails put on them to prevent degrees of their participation in matters pertaining to the court proceedings.
He said it would be a colonial imposition to ask the HCCC to appoint one Clan Mother or Chief.
He turned to a previous court rulings to support the argument that HCCC can appoint anyone or any group of their choosing to represent them in court.
Gilbert spoke about how many years ago HCCC appointed Joseph Brant, who was not a chief, and much of the evidence is connected with decisions he made as a delegate.
Janes said that HCCC is entitled to give a perspective only, but that they cannot allow them into the case to offer anything more.
The matter is scheduled to resume again in court on Friday.