Class-action lawsuit against HDI still moving through the courts

SIX NATIONS — A group of Six Nations members who filed a class action lawsuit on behalf of the Haudenosaunee people against the Haudenosaunee Development Institute say that after a pandemic delay through the courts, the case is now moving forward towards certification.

In September 2016, Wilfred Davey and Bill Monture filed the class-action lawsuit against the Haudenosaunee Development Institite, its Directors Hazel Hill (who has since resigned her position), Brian Doolittle and Aaron Detlor; the HDI’s numbered Ontario Corporation 2438543 Ontario Inc; it’s financial management corporation Ogwawista Dedwahsnye Inc. and it’s then Director Elvera Garlow.

The case was put on hold through the pandemic and the retirement of the assigned judge, Ontario Justice R.A. Lococo, who was the only class-action justice in the region also prompted a delay. Now the courts are seeking a new judge and, once assigned, Davey says the case is expected to move into the next phase of examination.

“We were notified two months ago that they were setting a new date to be heard,” said Davey. “We’re not deterring from the original plan.”

In 2018, Justice Lococo ruled the case has merit to hear arguments on four of the claims being made: breach of trust, breach of fiduciary duty, negligent or fraudulent misrepresentation and oppression.

The claim alleges Detlor, Doolittle and Hill created the HDI to accept money from developers in exchange for consent —  and then subsequently created a numbered Ontario corporation to accept the funds and then “to purchase Haudenosaunee land and divert funds properly belonging to the Chiefs Council and the Haudenosaunee people.”

The claim alleges Detlor, Hill and Doolittle “breached their fiduciary duty to act honestly, loyally and in good faith” for funds they managed under 2438543 Ontario Inc..

Documents obtained by TRT show that numbered corporation was started in 2014 and was delegated the responsibility of the HCCC’s 8 points of jurisdiction and the 50 chieftainship titles of the Haudenosaunee traditional governance system — bringing both under Ontario’s jurisdiction.

It was that incorporation process itself that drew the most criticism from Six Nations members who follow the traditional governance system — saying the chiefs titles and the 8 points of jurisdiction belong to the people, not HDI — and that HCCC did not have the authority to direct HDI to bring those two traditional governance pieces under the jurisdiction of the province of Ontario or an Ontario corporation.

According to HDI, the numbered Ontario corporation was to be considered a vehicle by which the HCCC could enter into contracts and receive money for agreeing to give consent to developers who are required to speak to them under Ontario’s processes — whenever anyone seeks to develop 1701 treaty lands, also known as the Dish with One Spoon territory.

In at least one of those contracts, the language states the money the numbered company receives would be used for the benefit of the Haudenosaunee people. In exchange, the HDI agreed that the Haudensaunee Confederacy Chiefs Council would surrender the application of sovereign immunity regarding the project and would actively prevent Six Nations members from opposing the development for the duration of it’s operations.

Additional claims in the lawsuit allege a breach of fiduciary duty by Elvera Garlow as director of HDI’s federal financial management corporation known as Ogwawista Dedwahsnye Inc..

HCCC’s lawyer Aaron Detlor is also being sued for breach of contract and breach of fiduciary duty.

Lococo writes the plaintiffs claim Detlor was retained by the HCCC to act as their lawyer with respect to development projects on Haudenosaunee land and that Detlor had a responsibility to act in good faith. The plaintiffs say they suffered damages as a result of Detlor breeching that contract.

Additional claims against the HDI and its officials allege the numbered company, Ogwawista and the individual directors engaged in fraudulent misrepresentation of the Haudenosaunee people and have added an additional claim of Oppression.

The relief from oppression claim is specifically against 2438543 Ontario Inc. under the Ontario Business Corporations Act — which protects an entities shareholders against prejudice and prevents corporations from disregarding their interests.

The plaintiffs say all of the Haudenosaunee people are shareholders according to the corporations construction, and that they relied on the defendants to “protect the rights of the class but instead, the defendants misappropriated the funds.”

HDI’s lawyers sought to have all of the mentioned claims tossed but were unsuccessful.

Lococo disagreed writing in his judgement that he does not agree “that it is plain and obvious that the plaintiffs’ claim has no reasonable chance for success”.

None of the claims have been proven in court, however it is now seeking certification as a class action.

In his decision from 2018, Justice Lococo writes that the plaintiffs are seeking $50 million in damages for the proposed class members, referred to in the claim as “the Haudenosaunee People”.

In 2019, HDI and defendants were ordered to pay the costs of the trial expenses to date — coming up to a total of $15,500, which they did in March 2019.

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