Judge orders Brantford and Ontario to consult with Six Nations

[tango]

Since the beginning, Six Nations has insisted that by Canadian law, Caledonia/Haldimand and Brantford must consult with them before approving and launching construction projects on land under claim. Now that the case has finally made it into court, it appears that the judge agrees:

Province ordered into land dispute

March 16, 2009

THE CANADIAN PRESS

BRANTFORD (Mar 16, 2009)

The province has been ordered to join a court action to be heard in the city this week about the ongoing push for an injunction against aboriginal protesters.

Protesters have said development is happening on their traditional lands and they've blocked companies from doing work.

Tomorrow, court will hear arguments on how the province should get involved.

Justice Harrison Arrell has already suggested that he's considering a court-mandated consultation process that would force the parties to negotiate a settlement with one another.

Brantford has been pushing for a long-term injunction against protesters and has filed a $110-million court action against some of them.

Liberal MPP Dave Levac says the province is ready to enter negotiations with the court and is a willing participant.

http://www.thespec.com/News/Local/article/530826

Judge favours forcing two-month dialogue

INUNCTION HEARING: Provincial representative shows up at action over Six Nations protests

Posted By SUSAN GAMBLE, EXPOSITOR STAFF

Updated 2 hours ago

A representative of the province finally showed up Tuesday at the hearing into the city's push for an injunction against native protesters.

Last week, Justice Harrison Arrell ordered the province to join the court action initiated by Brantford.

He said his inclination is to force Brantford, Ontario and Six Nations into a two-month consultation process to try to work out the problem of protests at development sites around the city.

But lawyer David Feliciant, representing the Ministry of the Attorney General, came to court only to press for more time, suggesting he be granted two weeks to get clarification from those he represents and work out a submission to the judge.

A number of the lawyers for native defendants objected to that idea, suggesting the province has received copies -- and plenty of warning -- about what was happening.

Judge Arrell was disinclined to slow the process, noting that, after this week, future hearing dates are set for May and he wants a consultation report back from the group by that point.

"I'm prepared to give you some time," allowed the judge. "I'll expect you back on Friday morning."

http://www.brantfordexpositor.ca/ArticleDi....aspx?e=1483024

Edited March 19, 2009 by tango

[madmax]

The Provinces lawyers don't appear to agree. They want more time, before deciding whether they can agree with the Judges lead.

The City Lawyer, sounds like a broken record. He is going to cost the City alot of money, and he will disappear with a fistful of dollars.

If the dialogue is imposed, as the court seems to want to do, I could see a room of Provincial, City and Six Nations Negotiators talking over wine and cheese and buffet lunches, while the disputed land is developed and the protesters kept off the disputed properties.

[charter.rights]

The Provinces lawyers don't appear to agree. They want more time, before deciding whether they can agree with the Judges lead.

The City Lawyer, sounds like a broken record. He is going to cost the City alot of money, and he will disappear with a fistful of dollars.

If the dialogue is imposed, as the court seems to want to do, I could see a room of Provincial, City and Six Nations Negotiators talking over wine and cheese and buffet lunches, while the disputed land is developed and the protesters kept off the disputed properties.

I'm pretty sure that the talks will be serious since it has always been (and I mean always in as long as we Europeans have been coming) that Six Nations has expressed their grievances over settlement on their land. We have ignored them and dismiss their claims despite entering into numerous agreements guaranteeing that we would respect their independence. The issue for the court is not directed at Six Nations but the judge put the onus on the province and Brantford to negotiate in good faith to reconcile Six Nation's jurisdiction over the land and their apparent claim that they cannot stop development. There is no question now that Six Nations can continue to protest and stop development without the fear of injunctions or police action.

However, the court has put both the province and the city of Brantford in a precarious position. Being compelled to negotiate means that if they do not cooperate with SN to come up with a mutual solution, one will be imposed and it is likely that such an imposition will not go favourably towards the Crown or the City. If either the province or Brantford do not come with an eye to compromise and agreement then they will be found to not be acting in good faith - in which case SN will have every right to stop up all development without interference. By negotiating to any settlement with SN they have to admit that the claims for the entire Haldimand are valid, and that would require the province to force all municipalities in the Haldimand into the same position Brantford finds itself in. Lastly Brantford's development expansions will essentially be halted since SN claims that a number of tracts were never actually surrendered not only gives them jurisdiction (and therefore be required to consult), but gives them ownership, or an immediate requirement for lands claims negotiations that will halt all development until there is a complete resolution (BC Supreme Court recently set this precedent). So in my view Brantford and the province are legally stuck in a case of giving up authority over development in Brantford and permitting future work stoppages or giving up jurisdiction to the entire Haldimand as a requirement to consult before any development is permitted.

Having read Six Nations claims a long time ago it was apparent that once the courts recognized their claims, Six Nations would be sitting in the superior position. Holding ownership and jurisdiction over the entire Haldimand Tract puts Haldimand County and every other municipality as well as the province, in a position as having to placate SN in order to retain even an ounce of authority. And once SN claims are recognized and the kinds of settlements that will make bankers blush occur, the rest of the natives in Ontario and in Canada will begin to follow suit.

While I am concern about the cost for financial compensation that will no doubt be included in any settlement I believe that none of this will be amicably settled until SN has received a substantial land return - something the province and the federal government have been trying to avoid for centuries.

[madmax]

There is no question now that Six Nations can continue to protest and stop development without the fear of injunctions or police action.

That question has NOT yet been answered.

However, the court has put both the province and the city of Brantford in a precarious position. Being compelled to negotiate means that if they do not cooperate with SN to come up with a mutual solution, one will be imposed and it is likely that such an imposition will not go favourably towards the Crown or the City.

Very likely.

Having read Six Nations claims a long time ago it was apparent that once the courts recognized their claims, Six Nations would be sitting in the superior position. Holding ownership and jurisdiction over the entire Haldimand Tract puts Haldimand County and every other municipality as well as the province, in a position as having to placate SN in order to retain even an ounce of authority. And once SN claims are recognized and the kinds of settlements that will make bankers blush occur, the rest of the natives in Ontario and in Canada will begin to follow suit.

Don't hold your breathe.

While I am concern about the cost for financial compensation that will no doubt be included in any settlement I believe that none of this will be amicably settled until SN has received a substantial land return - something the province and the federal government have been trying to avoid for centuries.

One injunction case is a long ways away from what you are talking about.

I doubt that the judge will be able to do anything, and if he does try to invoke anything, it will become subject to a challenge, likely from either the City or the Province.

[Oleg Bach]

What do Six Nations know or care about environmental studies - I think what the judge was saying was - you had better cut a deal with the chief and his boys - and make sure they get some cash..or they will hold you up in court or protest you to death. These "Indians" have learned well from the white hustlers - on how to hustle - You could cut the process short by simply buying them a casino..

[madmax]

What do Six Nations know or care about environmental studies - I think what the judge was saying was - you had better cut a deal with the chief and his boys - and make sure they get some cash..or they will hold you up in court or protest you to death. These "Indians" have learned well from the white hustlers - on how to hustle - You could cut the process short by simply buying them a casino..

The Casino sits on "Six Nations Land"

A group of natives waved warrior flags Wednesday at the city's charity casino as a reminder that Six Nations considers that gambling hall to be on its land.

The two-hour information protest was polite and clear: the casino sits on native land, according to the protesters.

within the City of Brantford. Its already been built. Don't have to buy it and you are suggesting that the Province Just hand it over? Where is the Federal Responsibilty in all this, and why should the City accept your position?

Edited March 19, 2009 by madmax

[Oleg Bach]

The Casino sits on Six Nations Land. Its already been built. Don't have to buy it and you are suggesting that the Province Just hand it over? Where is the Federal Responsibilty in all this, and why should the City accept your position?

Not asking the city to accept my position because I have not taken one as yet nor will I. The point was that there is an alliance between judicary and the Six Nations tribes - It's a buisness arrangement - Why do you think it is taking so long to conclude and find a remedy for Caledonia? I would say it's because everyone involved is making money on these affairs - again point being----Six Nations are really not that big on environment - they have matured in the worst possible way and know that money makes life better - worry about nature second. As for federal responsibliy.

-- The Feds just like the Supreme Court are just not street wise and don't know how to deal with the powers that be within the real power structure that is Six Nations - nor do they want to go near Provincal corruption of any kind - The Feds have a hard time understanding and excepting that it's a rough and tough world out there and very few abide by what is just or lawful - They are school boys and just don't have the fearlessness to deal with matters that may effect their careers as far as re-election - re-election is more important than actually doing the job.

[madmax]

Not asking the city to accept my position because I have not taken one as yet nor will I.

Yeah, I hear you. I just wanted to point out your clairvoyance. You mentioned building a Casino.. and.....

Poof there is it.

[Oleg Bach]

Yeah, I hear you. I just wanted to point out your clairvoyance. You mentioned building a Casino.. and.....

Poof there is it.

Yah it was like yesterday, when I used the line regarding the bonus skimming off the big American insurance company bail out- I said " It's like being the captain of a ship that is burning and sinking - and you hand over the gold to your first mate and the officers - letting the lowly crew and passengers go down with the ship ---- well about 7 hours later some congressman got up and used the same line -- It's not clairvoyance - It's just that like minds in different locations are stimulated by the same things and come up with the same things at the same time......and if that's not true - than I want a dollar a word from here on in ..

[charter.rights]

That question has NOT yet been answered.

Very likely.

Don't hold your breathe.

One injunction case is a long ways away from what you are talking about.

I doubt that the judge will be able to do anything, and if he does try to invoke anything, it will become subject to a challenge, likely from either the City or the Province.

Although the final death knell has not yet been rendered on Brantford's injunction, it has pretty much been dismissed as an option by the court. The Amicus has already presented enough evidence about how it cannot succeed by law.

What is the court to do if Six Nations is a willing participant and presents a reasonable solution...like the HDI as their agent....like development fees being paid to Six Nations...like a tax sharing....like jurisdiction sharing....and the province and Brantford refuse to budge past their obvious long stated position that all surrenders are valid and Brantford does not need to consult? The court has accepted evidence to both and has been clear that Brantford and the province must consult. If this negotiation fails I'm am pretty confident that it will not be because Six Nations has not been a willing participant. And if failure occurs, and no injunction can be upheld, it will authorize a protest entrenchment in lands not only in Brantford but up and down the Haldimand. The court - who is the Crown's representative - cannot ignore its fiduciary duty to Six Nations...meaning it must first and foremost protect Six Nations constitutional rights over and above any domestic law (a directive of the SCoC). That would mean according to the recent BC Supreme Court, that all development must stop until lands claims are sorted out and Six Nations rights have been fully respected. Moving forward without a basis in law would find the province and Brantford in contempt and it would be likely that the Six Nations injunction and lawsuit against Brantford would succeed.

A simple injunction case decision certainly is not the end all, but there is no doubt given the direction that the SCoC has laid out, that Six Nations would prevail on any and all appeals. Simple is often all it takes when defining rights. Just remember how quickly the Frontenac Ventures appeal was dismissed in favour of Ardoch Algonquins and toady just months later it is being referenced as another test of aboriginal rights under the Charter. It wasn't even as complicated as an ill-conceived injunction but over the penalties arising from it.

Six Nations also has the Amicus Cureai factum entered into evidence that provides sufficient knowledge that Six Nations did not surrender, nor intent to surrender a number of tracts in Brantford, and the most contentious Plank Road, which the federal government has stated over and over again they believe is valid. If an Amicus can reveal such a simple error in the federal government's case, do you think for a minute that the SCoC wouldn;t have just as easy a day of it?

Yes the Casino does sit on unsurrendered Six Nations land. At the very least they should be receiving the entire tax benefit from it...just as if the province built a casino on what turned out to be within Manitoba provincial boundaries. An error does not negate the transaction in its entirety but requires the court to find compensation of equal or better value in resolution.

[Oleg Bach]

Brant has crawled out of his grave? I suggest telling him to get back in and behave himself..this is odd that it may end where it began.

[charter.rights]

Brant has crawled out of his grave? I suggest telling him to get back in and behave himself..this is odd that it may end where it began.

Brant never made the deals nor had the authority people seem to accuse him of. In modern day reports, the Joseph Brant that people like to bring out in discussion is a mythical figure who wasn't smart enough to know he was being taken. To the contrary, not only wasn't JB taken in but as we are seeing today there were enough documents and knowledge preserved to prove he could not be swindled out of land and that the agents and governors in the Crown were fraudulent and untrustworthy representatives.

As I said, the Amicus revealed the skulduggery in just a couple of weeks. The British of that time were neither sophisticated enough or intelligent enough to get away with the kinds of slimy dealings they were attempting to pull off.

[Oleg Bach]

Brant never made the deals nor had the authority people seem to accuse him of. In modern day reports, the Joseph Brant that people like to bring out in discussion is a mythical figure who wasn't smart enough to know he was being taken. To the contrary, not only wasn't JB taken in but as we are seeing today there were enough documents and knowledge preserved to prove he could not be swindled out of land and that the agents and governors in the Crown were fraudulent and untrustworthy representatives.

As I said, the Amicus revealed the skulduggery in just a couple of weeks. The British of that time were neither sophisticated enough or intelligent enough to get away with the kinds of slimy dealings they were attempting to pull off.

So we are in a state of check mate? The decendents of the slimy Brits are still not slick enough to take the land for free - and the Natives are still dumber than door nobs in below zero weather? Great - in other words we are back to square one where we started...so what now?

[charter.rights]

So we are in a state of check mate? The decendents of the slimy Brits are still not slick enough to take the land for free - and the Natives are still dumber than door nobs in below zero weather? Great - in other words we are back to square one where we started...so what now?

Not all all. The court has mandated consultation that is required under the law.

If there is no agreement, then Ontario and Brantford lose because the court will have to impose a verdict that MUST protect Six Nations' constitutional rights.

If they hammer out a deal and present it to court, Six Nations wins because it becomes 1. a recognition that they do have rights that need to be consulted, accommodated and reconciled, 2. the order they received from the court gives them more ammunition to stop more development elsewhere along the Grand River and demand consultation and, 3. the injunction process becomes a lost tool to defend the errant municipalities and the province and keeps the police out of the "rule of law" issue.

And if for some reason any party wants to appeal the non-judgment or the imposition of a judgment that doesn't go in favour of Brantford, it is unlikely given the Frontenac test, that the SCoC will allow the appeal.

The Frontenac Test

136. In Frontenac , the Court defined the pervasive theme in every case where an injunction is sought with respect to Aboriginal land. In each of those situations the Court must reconcile the competing interests:

[45] And how are these interests to be effectively balanced? The answer has been clear for almost 20 years in the jurisprudence of the Supreme Court of Canada – consultation, negotiation, accommodation, and ultimately, reconciliation of aboriginal rights and other important, but at times, conflicting interests.

137. The Court of Appeal therefore held that the government must consult and negotiate with aboriginal communities, in an attempt to reconcile the competing interest, before seeking an injunction that will affect those rights. As the government had failed to do so in Frontenac, the Court concluded that:

…..where constitutionally protected aboriginal rights are asserted, injunctions sought by private parties to protect their interests should only be granted where every effort has been made by the court to encourage consultation, negotiation, accommodation and reconciliation among the competing rights and interests. Such is the case even if the affected aboriginal communities choose not to fully participate in the injunction proceedings.

ref. The Amicus Cureai Factum

[tango]

So we are in a state of check mate? The decendents of the slimy Brits are still not slick enough to take the land for free -

I'm with you there ...

and the Natives are still dumber than door nobs in below zero weather?

Hmm ... ignorant, mean, ugly comment ... and not borne out by the data ...

Seems their lawyers are doing pretty well in court, if you've been keeping up.

(or is this just another of your door-knobbish rants, Oleg?)

Maybe you missed it, but Six Nations has been telling Brantford and Ontario for three years that they have to consult about development.

Now the judge has ordered Brantford and Ontario to do exactly that.

Great - in other words we are back to square one where we started...so what now?

Not exactly square one ...

Now Brantford and Ontario consult with Six Nations about how they can accommodate Six Nations Aboriginal Rights - A say in development and a share in revenues.