By Staff Reporter
TORONTO — More than two centuries after the British Crown promised the Haudenosaunee a stretch of land along Ontario’s Grand River, and 31 years after Six Nations of the Grand River sued over what happened to it, the case is now on trial.
Proceedings opened Oct. 5 before Justice Ira Parghi of the Ontario Superior Court of Justice. Six Nations is suing Canada and Ontario over the loss of most of the Haldimand Tract and the alleged mismanagement of trust money from land sales. The case could become one of the longest trials in Canadian history. A federal government document puts the potential damages at anywhere from $13.9 billion to $8.7 trillion.
The case is also part of New York’s history. The Six Nations — the Mohawk, Oneida, Onondaga, Cayuga, Seneca and Tuscarora — moved north to the Grand River after they were displaced from their homelands in what is now upstate New York after the American Revolution.
‘I have the honour of representing my civilization’
In a break with usual court practice, Six Nations band councillor Amos Key Jr. was allowed to address the judge before the hearing began. He wore a traditional ribbon shirt and delivered the Haudenosaunee thanksgiving address in Cayuga, The Hamilton Spectator reported.
“I have the honour of representing my civilization,” Mr. Key said. He told the court that the Haudenosaunee “stand here looking to the court for our social, linguistic, legal and political justice.”
“We all have the same heart,” he said.
What Six Nations claims
The Haldimand Proclamation of 1784 set aside roughly 385,000 hectares, a strip about 10 kilometres wide on each side of the Grand River from Dundalk to Lake Erie, for the Haudenosaunee, who had been Britain’s allies in the Revolutionary War. Six Nations now holds 18,615 hectares, less than 5 percent of the original grant, CBC News reported.
Six Nations argues that the Crown sold or expropriated the land instead of letting the Haudenosaunee lease it and keep the income. It also argues that the Crown used the proceeds for colonial projects, including the Welland Canal, which links Lake Erie and Lake Ontario around Niagara Falls.
“All of our money, all of our lands were sold to run the colonial government of Upper Canada for about 60 years,” Lonny Bomberry, the nation’s lands and resources director, told CBC. “By the 1860s, we were completely broke and a million acres gone through what I call the heart of Canada and nothing to show for it.”
Robert Janes of JFK Law, who leads the Six Nations legal team, told the court the proclamation “had all the historical hallmarks of a treaty.” He said, “What should have been a vast fortune was lost.”
What the governments say
Canada and Ontario both say the proclamation was not a treaty and did not create an obligation to establish a reserve. In its statement of defence, Ottawa says the land was lost through “a series of valid surrenders and sales of lands within the tract.” It also argues that because the events happened before Confederation, Canada may not be liable. Ontario has filed a crossclaim saying that if anyone breached a duty, Canada alone is responsible.
Six Nations is not asking for land back. In a question period note prepared last November for Crown-Indigenous Relations Minister Rebecca Alty, her department said landowners in the tract need not fear losing their property. “Where claims of this kind have merit, Canada resolves them financially and not through dispossession of any third-party property rights,” the department wrote, according to The Spectator.
Divisions on the Haudenosaunee side
The case has exposed old divisions. The Mississaugas of the Credit First Nation, whose 1784 treaty with the British made the Grand River lands available to the Haudenosaunee, joined as an intervener. It supports holding Canada accountable but rejects the claim that the proclamation was a treaty, and it is not seeking compensation.
“We support them on making Canada accountable for the lands,” Chief Margaret Sault told The Spectator from the courtroom gallery.
The Haudenosaunee Confederacy Chiefs Council is the traditional hereditary government. Its development institute was denied permission to intervene, and the council questions whether the elected band council, created under the Indian Act in 1924, has any right to collect on claims that are older than the council itself.
“Council didn’t exist when treaties were made,” Kanien’kehá:ka Chief Allan McNaughton told CBC. “They are not a treaty-making entity.” Mr. McNaughton said the confederacy would prefer arbitration and will not appear before a “foreign court.”
A decade, maybe longer
The court has scheduled 350 hearing days through Dec. 31, 2027. Federal officials have said the first phase, on liability, could last up to five years. A second phase on damages would follow, and an appeal to the Supreme Court of Canada could push the case past a decade.
“The Six Nations have always been, and remain, open to achieving reconciliation outside the court. But this seems to be out of reach,” Mr. Janes said.
The case matters on both sides of the border. Haudenosaunee communities in New York, including the Seneca Nation, the Tonawanda Seneca Nation and the Tuscarora Nation near Niagara Falls, share kinship, languages and Haudenosaunee heritage with Six Nations of the Grand River. How a Canadian court rules on whether a Crown promise to the Haudenosaunee counts as a treaty will be watched closely in New York as well.
Band members have watched the opening weeks on screens set up at Six Nations Polytechnic and other venues on the territory, while the trial continues in Toronto.
Leave a Reply