By Lisa Eisse
TORONTO- Who gets to intervene in Six Nations multi-billion-dollar land rights case is now in the hands of Justice Jasmine T. Akbaral after the Mississaugas of the Credit First Nation (MCFN) challenged whether Six Nations Haldimand Deed is an actual treaty.
The court heard Friday (May 12) from MCFN lawyer Nuri G. Frame that the case has important implications to MCFN, “It is essential and foundational to my clients worldview, to their cosmology, to their understanding of their place in the world. To their understanding of their future generations’ place in their world. Southern and southwest Ontario is their traditional territory.”
The MCFN are seeking intervenor status in Six Nations huge land rights case that has been valued at billions of dollars.
Their lawyer, Nuri Frame told the court the MCFN were the sole possessors of southern Ontario lands, which was why the Crown entered into so many treaties with them for lands in southern Ontario. He said that not being able to participate in the court case would impact them, their rights and their history.
The land rights lawsuit was filed about three decades ago by SNEC.
HCCC and HDI, along with the Men’s Fire are also seeking to be included and are seeking “intervenor status”). The hearing was held at the Superior Court Building, at the Courthouse on 330 University Avenue in Toronto, and was broadcast via Zoom.
Frame argued that MCFN did not enter the suit earlier because they were led to believe that SNEC’s court action was about seeking.
compensation from the Crown for breach of their reserve lands and would not extend beyond the reserve border.
Frame said that (SNEC)’s “suggestion that whatever happens in this case won’t have any impact or implication or create real adverse effects on my clients” was incorrect.
Frame argued that MCFN’s voice and perspective is not only useful, but necessary. He also referred to past court rulings within the province to argue that expert reports should fulfill a certain criteria which was not being met.
Frame also stated that SNEC and other parties who spoke at the hearing this week have treated the principle of what an “ expert report” is in a “passing way.”
Frame said the history under debate in relation to the Haldimand Tract, and the Haldimand Proclamation of 1784 .
“The British and the Albany Treaty of 1701 had guaranteed the Haudenosaunee possession of the vast region north and West of Lake Ontario. Consequently, Haldimand’s (deed) did not initiate, but instead enhanced the Six Nations ownership for that valley,” he said.
Frame read a couple of quotes of “expert opinion interpreting the Mississauga’s treaties.”
He said Chippeway Indians, historically known by the British as Mississaugas, with whom the Six Nations had shared the use of the Grand Grand River Valley from approximately 1701 included a tripartite treaty with Six Nations.”
Frame said that this was referring to the Between the Lakes Treaty. He said that the treaty described “their interests in particular lands, including those selected by Six Nations as relocated sovereign territory following the American Revolution.”
He said “the Mississaugas undertook to cease exercising customary hunting and ancillary rights on the land selected by the Six Nations allies as relocated sovereign territory for the settlement of Six Nations allies following the American Revolution again.”
Frame said that a direct interpretation of what the Between the Lakes Treaty did and how it impacted not just the Six Nations, but how it impacted the rights of the Mississauga’s (including the lands and also to customary hunting and ancillary rights) was at issue.
He said that the history sparks questions about what a treaty means and what a treaty does, “Those are the core questions of treaty interpretation.” He pointed out that references to MCFN and treaties they were a part of are found throughout the pleadings and materials submitted by SNEC.
Frame argued that Section 35 of the Constitution calls for the participation of MCFN. Section 35 of the Constitution outlines the duty to consult and accommodate Indigenous rights and treaty rights of Indigenous people across the country.
MCFN does not intend to “adjudicate” or to bring in any counter or cross claims, Frame said. MCFN was only looking to participate in a subset of issues.
Frame stated that MCFN’s intent was to work collaboratively and cooperatively with the court. They want to do so without creating further delays, he said. Frame replied when asked by the judge that it would take no more than six months to produce the evidence needed.
Without MCFN’s participation in the case, there could be irreparable consequences for MCFN, Frame urged.
Frame also replied to SNEC’s suggestion that they were really trying to bring a water claim into the court. He said that the suggestion showed a “lack of understanding and disrespect.”
Frame denied SNEC’s claim that the addition of them into the case would mean new issues, and would cause delays. He argued that the territories MCFN is concerned about are already an issue in the current SNEC case.
Frame also stated that under the circumstance, it was not possible, reasonable or practical for “guardrails” to be put in that would limit MCFN’s participation if the judge decided they should be included.
Frame said because the issues are affecting them (MCFN), limits cannot be placed regarding how they are allowed to participate. They cannot be bound by a decision they are not allowed to argue in a court of law, Frame urged.
During the proceedings Judge Akbaral pointed out to SNEC lawyer Max Shapiro that Frame had argued that what they are concerned about is how (SNEC) seeking the findings of facts about those histories is what may impact them down the road. S said MCFN was concerned that the findings as determined or decided within a court could have long term impacts on how their treaty rights and their rights as Indigenous people are decided in the eyes of the court
. Both Frame and David Tortell (lawyer for Ontario) said that it was very clear that MCFN were exercising their own agency, their own rights. They argued SNEC’s claim that MCFN was in “cahoots” with Ontario was unfounded.
Frame responded to SNEC’s claim that it was just today that they heard that MCFN “opposed declaratory relief,” specifically to the Haldimand. Frame pointed out MCFN made it clear much sooner that they disagreed the Haldimand declaration is a treaty. He presented evidence including a 2020 “comfort” letter by SNEC to back up his statement.
Regarding questions of debate about the size of the Haldimand Tract, Frame clarified that what MCFNChief Stacey Laforme said was that, he was not intervening to debate the size of the tract, but he was “intervening to protect the history of their ancestors and the future of their people.”
SNEC had claimed “indemnity costs” because they said that they had to “divert resources to respond” to MCFN motion to intervene, which was supported by Ontario. SNEC accused Ontario of “improper conduct that merits a cost”, because of Ontario’s decision for consenting to MCFN’s motion. Tortell argued SNEC’s claim was unfounded, “We are talking about nine minutes maximum (which was the length of the request)”
Judge Akbaral asked that all parties involved should submit cost outlines.
All parties have 10 days to submit any costs and Judge Akbaral said she would have a decision as “swiftly as possible.”