By Mike Renzella
The Haldimand Press
HALDIMAND—It’s been 28 years since the initiation of a court case between Six Nations of the Grand River and the federal and provincial government related to land claims stemming from the Haldimand Proclamation of 1784.
The case is back in the spotlight again, gearing up to finally go to trial in 2024. Before that happens though, three separate entities – the Haudenosaunee Development Institute (HDI), the Six Nations Men’s Fire (SNMF), and the Mississauagas of the Credit First Nation (MCFN) – have all stepped forward with a request to be active participants in the litigation.
Matthew Gutsch, a Media Relations representative for Crown-Indigenous Relations and Northern Affairs, said the case is centred on how Six Nations lands and monies were managed by the Crown from 1784 onwards.
“Canada deeply values its relationship with Six Nations. We respect the decision of Six Nations to pursue their claims through the courts,” he began. “We are keeping the lines of communication open with Six Nations’ Elected Council, the Haudenosaunee Confederacy Chiefs Council, and Ontario on these important matters and we remain open to continued dialogue outside of the courts.”
However, Gutsch added that despite numerous attempts by Canada, Ontario, and Six Nations since 2006 to address Six Nations’ claims through dialogue, “the parties, to date, have been unable to find the common ground needed to reach a negotiated solution.”
Lonny Bomberry, Lands and Resources Director for Six Nations, shared his thoughts on the case: “The Six Nations of the Grand River were promised a tract of land six miles on either side of the Grand River to make up for the lands they lost because they supported the British during the American War of Independence.”
Bomberry said that despite claims that the Crown kept control of those lands for the benefit of Six Nations, they were “given up, sold, or flooded, and the money that was supposed to be held for Six Nations was stolen by Crown Officials, mismanaged, or lost in bad investments.”
He claims the Crown has historically refused to account for what happened to the money or produce records that offer a valid explanation.
Bomberry called the process of piecing together two centuries worth of events “onerous.”
“In the late 1990s, the Band had to bring a motion to compel Canada to answer written questions. The Band was successful on the motion and subsequent appeals, which lasted until 2002,” said Bomberry. “Additionally, the action was paused between 2004 and 2009 when the Six Nations tried to make efforts with the Crown to settle these claims. The Haudenosaunee Chiefs Council was also involved in the discussions during that time period.”
With no resolution coming from that process, the Six Nations Band Council restarted their case in 2009. Bomberry added, “Since then, the Band has been pushing this case forward, including a lengthy process of seeking admission from the Crowns.”
The case, which is set to go to trial in 2024, will be split into two phases. Bomberry explained, “In the first phase the court will determine if we are correct that the governments of Canada and Ontario are responsible to make good on the losses that the Six Nations of the Grand River have suffered at the hands of the Crown.… We are working to have the first phase of the trial held next year. After this there will be a second phase to determine the amount of any damages and to obtain an accounting from the Crown for its mismanagement of the band’s land.”
Before the case can proceed any further, however, the courts must determine whether the HDI, SNMF, and MCFN will be allowed to participate alongside Six Nations, and how their involvement in the proceedings might impact Six Nations’ case.
HDI is a delegate of the Haudenosaunee Confederacy Chief’s Council (HCCC), which is comprised of a group of Chiefs representing the Haudenosaunee government. According to Gutsch, HDI wants to see any damages from the case spread out to the entire Haudenosaunee Confederacy, with the Hereditary Chiefs in control of those monies.
Tim Gilbert of Gilbert’s LLP is representing the HDI. He said the HCCC, which he described as the governing body in Ohsweken for “over 230 years, long before the imposition of the current Band Council under the Indian Act of 1924,” has a “different perspective” on the case in contrast to Six Nations Band Council.
“For one thing, Band Council’s jurisdiction is limited to the reserve lands and its members under the Indian Act. The Band Council does not represent (and does not purport to represent) Haudenosaunee people who aren’t part of the specific Band. There are Haudenosaunee living in other parts of Ontario, Quebec, New York State, Wisconsin, and Oklahoma,” said Gilbert.
He continued, “The Haldimand Proclamation, which is at the centre of the current litigation, concerns the rights of the ‘Mohawk Nation and such others of the Six Nations Indians,’ and ‘their posterity’ forever. There are different interpretations advanced as to who is affected but one obvious one is that the litigation affects all Haudenosaunee people for generations. Band Council does not take that position, so it’s important that this different perspective is heard.”
Jeffrey Kaufman of Kaufman Law is representing SNMF, which opposes HDI’s claims. He explained of the group’s reasoning for seeking a role in the case: “The Men’s Fire, as a protector of its people, is intervening in this proceeding to challenge the authority of HDI to represent the people under Haudenosaunee law. We are also questioning their use of and lack of transparency with the people’s money. Our detailed submissions are contained in material filed with the Superior Court and will be argued in May.”
The Press also reached out to MCFN for a comment on their request to participate, but did not receive a response prior to publication. According to a litigation notice published in The Press on February 23, MCFN supports Six Nations’ efforts to “hold Canada and Ontario accountable for failures and broken promises relating to the Haldimand Proclamation lands.”
According to the notice, MCFN are not seeking financial compensation in the case, but due to the lands in question being in their traditional and treaty territory, “MCFN wishes to ensure its history, rights, and relationship with that territory are accurately presented,” with Gutsch asserting that their involvement signifies “that it objects to HDI being authorized to represent the collective rights-holders in the proceedings.”
Bomberry called it “unfortunate” that the three groups are seeking involvement, adding, “We are hopeful that the court will not permit these last-minute efforts to interfere with the Six Nations of the Grand River finally having its day in court.”
The HDI and SNMF motions are due to be heard by the Ontario Superior Court from May 8-10 at The Gathering Place in Ohsweken. Following this, the Mississaugas of Credit First Nation’s intervention motion is scheduled to take place in Toronto on May 12.
“In the interim, a court-ordered notice has been provided to specific groups not currently a party to the litigation that HDI asserts it represents. This includes the Haudenosaunee Confederacy Chiefs and members of the Haudenosaunee Confederacy,” said Gutsch, noting that any other groups interested in seeking participation must state their intentions to do so by March 10 to be considered.
