Men’s Fire wins bid to stop HDI, Mississaugas of the Credit granted intervenor status
By Nahnda Garlow
TORONTO — The Haudenosaunee Development Institute has lost yet another legal battle on behalf of the Haudenosaunee Confederacy Chiefs Council, this time being told by an Ontario court that their latest attempt to intervene in Six Nations land claim case was an ‘abuse of process’.
Justice J.T. Akbarali issued her 20-page decision on Wednesday afternoon — ruling that HDI would not be granted intervenor status in the Six Nations land claim.
“In my view, HDIs interest in this proceeding was never to represent the Haudenosaunee Confederacy more broadly,” wrote Akbarali. “…HDI seeks to advance HCCCs interest in positioning itself as the legitimate governing body of the Six Nations people within the Grand River community. It’s efforts to do so have been litigated and rejected three times.”
Akbarali wrote that HDIs draft pleading, which they later withdrew from the case, wanted Ontario courts to declare that the band council was not entitled to any of the relief sought in the land claim — and instead was asking for an order directing Ontario and Canada to negotiate the settlement with the HCCC instead.
“In its draft pleading and as affirmed on cross-examinations, HDI has stated what it seeks to do: it wants to derail SNGRs litigation and displace SNGR in favour of HCCC as the counterparty to negotiations with the defendants. In other words, HCCC seeks to use HDI to challenge the governance of SNGR through this proceeding,” wrote Akbarali.
“Understood in this way, HCCCs interest, which HDI seeks to represent, is not genuine to the litigation,” said the judge. “HDI does not seek to participate in the litigation as a good faith actor, to advance it to its adjudicated conclusion in an organized, efficient and just manner. I am satisfied on the evidence before me that HCCCs true interest and goal in seeking to intervene as a party through its delegate HDI is to cause delay and disruption for its ulterior purpose of challenging and undermining SNGRs right to lead the Six Nations community.”
Sources with SNGR told 2RT the loss was a significant one for HDI, and that HDIs legal team was unsuccessful on every point they argued.
The judge also called out HCCCs use of the HDI to create a false impression that they are not attorning to the jurisdiction of Ontario.
“…HCCCs rejection of Canada’s judicial system does not mean it can engage with that system through a delegate to frustrate the rights of another Indigenous group that chooses to access Canada’s judicial system to make its own claims against [Ontario and Canada],” wrote the judge.
The judge also wrote that HCCCs interest in stepping into the land claim case was not a genuine effort to take part in the land claim case as a party but rather an attack on three lawsuits throughout history that dismissed their challenges to the band council governing the community.
Justice Akbarali cited three lawsuits including a fairly unknown attempt by HCCC Secretary Leroy Jock Hill in 1998, Hill v Canada, to sue for a declaration that SNGRs surrender for a parcel of land was null and void because the HCCC did not accept it. Hill lost that case and never appealed, further cementing the authority of the elected band council over the Six Nations of the Grand River Territory.
Hill was initially set to file an affidavit in the intervenor motion but in a late decision, that affidavit was removed from HDIs materials.
Akbarali said HDI had committed an abuse of process through the intervenor hearing to challenge the governance of the Six Nations community and that if she had not already dismissed the motion on the grounds that HDI was not deemed an acceptable representative body, that she would have dismissed it on an abuse of process.
The Mississaugas of the Credit were successful in their motion and will be added to the land claim with specific restrictions in place. Akbarali said MCFN cannot make any counterclaims, crossclaims or third-party claims and will seek no relief in the Six Nations land claim. MCFN can still oppose relief that is sought by other parties if it believes that is a breech of its own treaty rights.
The Men’s Fire also won on their motion to intervene on HDIs intervention motion. Men’s Fire were not seeking to be added to the land claim on their own, only to oppose the HDI being named representatives for the entire Haudenosaunee Confederacy. Akbarali granted the Men’s Fire status to intervene in HDIs motion. In her decision, Akbarali wrote that the Men’s Fire motion to be added as a party to the land claim was dismissed. Lawyer for the Men’s Fire Jeffrey Kaufman told 2RT this was an error and that the Men’s Fire did not file a motion to be added to the land claim, only a motion to stop HDI from being added. Kaufman said that error would be corrected when the final orders from the decision are issued by the judge.
A source with the Men’s Fire told 2RT they were pleased with the outcome.
The judge found that the Men’s Fire is an important representative part of the Haudenosaunee Confederacy and that they have a direct and genuine interest in their motion to intervene and oppose HDI claiming to act on their behalf, without their consent.
The judge pointed out that once the Men’s Fire evidence and arguments against HDI had already been filed with the courts, HDI then pulled back and changed its representation order request to only speak on behalf of the HCCC — a move that severely unravelled most of the arguments HDI had already made about the HCCCs claim to be the true governing body of the Haudenosaunee Confederacy.
A representative for the Men’s Fire says the ruling is a big win for the people of the Confederacy as they continue to advance a class-action lawsuit against HDI, 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 claim alleges Detlor, Doolittle and Hill created the HDI to accept money from developers in exchange for consent — and created a corporation to divert funds properly belonging to the Haudenosaunee people.
Detlor is also being sued for breach of contract and breach of fiduciary duty. The claim says 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.
That case is still moving its way through the courts and is expected to get to the certification phase in fall 2023
