A lawyer representing Six Nations of the Grand River Elected Council said allowing the Haudenosaunee Development Institute to intervene in Six Nations’ multi-billion-dollar lawsuit against the feds would be inappropriate.
“That should not be allowed,” said Iris Antonios, a lawyer representing SNGREC. “HDI is a divisive, obstructive, opaque association and it would be inappropriate for it to be chosen or appointed by this court as a representative.”
The comments came at the first day of hearings at Superior Court in Toronto where three different parties are expected to argue why they should also be included in SNGREC’s massive land claim suit seeking an accounting of funds from the federal government for hundreds of thousands of hectares of land within the Haldimand Tract.
The tract covers six miles on either side of the Grand River from its mouth to its source.
Six Nations says 95 per cent of that land was unlawfully squandered by federal agents and today, only five per cent of that land base remains, at the Six Nations reserve.
Antonios told the court that HDI, which is the administrative arm of the Haudenosaunee Confederacy Chiefs Council, is made up of two individuals: Aaron Detlor, a Toronto lawyer, and Brian Doolittle.
She said Detlor’s actions at the Metrolinx site at Moss Park, where he smashed a car into a construction, caused employees and an archaeologist on site to feel threatened, to which he later apologized.
She said he claimed he was asserting his treaty rights to obstruct tree cutting work at the park.
The HDI applied to be an intervenor in the historic land claim battle last year, claiming it is the rightful governing body of Six Nations and that elected council was not in power at the time the Haldimand Proclamation was made in 1784.
The HDI further stated that the Haldimand Proclamation is not the basis of its land rights arguments, saying that the government at the time had no right to give away land that it didn’t own anyway.
The elected council only came into power in 1924, Antonios said, but stated many Six Nations community members did not want a hereditary government in place and wanted an elected system.
It’s been said by some historians that the RCMP forcibly removed the traditional council and replaced it with the elected band council in 1924.
Antonios said that the elected council of 1924 is not the same as the one functioning today, with a custom election code outside the authority of the Indian Act.
Antonios said the HDI intervention is an attempted governance claim and that they are attempting to usurp the band council and bring the litigation back solely under the jurisdiction of the HCCC.
Six Nations Elected Council had tried to resolve its outstanding land claim issues in the 80s under the federal government’s specific claims process but that process did not lead to a resolution, leading them to file the court case in 1995.
The case was put in abeyance in 2006 to enter into joint negotiations with the HCCC, seeking a joint resolution, after Six Nations people staged a massive land rights protest in Caledonia by stopping construction on a proposed subdivision on contested land.
She said the HCCC considered intervening in the case in 2009 when it says band council walked away from the joint negotiations but did not file the intervention until 2022.
The HCCC informed sister Haudenosaunee communities in Canada and the United States of its intent to intervene last year, but they were not consulted, said Antonios.
Particularly, she noted a letter from the Mohawks of the Bay of Quinte objected to the HDI representing the Haudenosaunee people in court.
Antonios laid out her case by stating the HDI had received about $38 million in revenue over the past roughly 10 years but much of the information about the HDI’s funds hasn’t been public, calling it an “opaque” organization.
She presented exhibits showing that success fees have been paid to Detlor every year since 2017 but this was not public knowledge until he was cross-examined by a court.
“That only came to light on cross examination. It is an opaque organization.”
She concluded her arguments by saying allowing the HDI to intervene in the case would be “inappropriate.”
On Monday, the trial was originally set to start but was delayed after legal counsel for HDI requested a last minute case conference to see if the issues at hand could be resolved.
TRT reporters were the only non-lawyers present at court Monday.
Anyone who was not a lawyer was asked to leave and not permitted to stay to hear the case conference. Lawyers for HDI told the court they were not sure if the outstanding issues could be resolved in one day and said they would do their best to resolve things by 4:30 p.m. Monday afternoon.
Those negotiations were ultimately unsuccessful and the matter proceeded to court anyway. A Six Nations rep told 2RT the HDI had made an “unacceptable” proposal that failed negotiation attempts and that all sides were going back to court for the hearings.
Lawyers for the Men’s Fire told 2RT the case built up by the HDI is “exceedingly weak” and said that the last minute attempt to settle things outside the hearings process was likely a response to the writing on the wall.
A Six Nations rep echoed the same sentiments and told 2RT the attempts to get a last minute case conference was because HDI was not confident they would get what they were asking for from the courts.
At Tuesdays hearings HDI appeared to be walking back the foundational points in their original claim — including the statement that they represent the whole Haudenosaunee population and instead said they would only represent the HCCC.
The Men’s Fire of Six Nations and the Elected Council are both arguing that HDI lacks accountability and should not be a party to the land claim.
Ontario responded to HDIs motion and says that it should be dismissed because HDI and HCCC do not have legal standing as they are not a natural person or a corporation.
They say that HDI told the court during cross-examination that regardless of the outcome that the HCCC Chiefs and Clanmothers will not abide by any order of the court, and as such there should be orders given if HDI is successfully added to the case – specifically an order that legally binds the HCCC Chiefs and Clanmothers to abide forever by the determination of the court.
On Tuesday in response to those challenges, lawyers for HDI said they would be willing to change the intervenor motion to name Brian Doolittle and Aaron Detlor personally to be included in the land claims case.
HDI lawyers also said that the HCCC chiefs and clanmothers told them they would all be willing to follow the orders of the courts but would reserve the right to respond to any decision they don’t like by addressing potential negative outcomes as any other sovereign nation would, potentially bringing it to “the Hague”.
Canada says HDI has no interests in the litigation and that they are not a rights holder that can advance the trial in any way. They also say that the trial judge deserves to hear a historical Haudenosaunee perspective through the trial and says the court should appoint an HCCC representative to participate.
The hearings will reconvene Wednesday morning at 9:30 a.m. in Toronto.