Ruling that called indigenous rights “a waste of time” stayed on appeal

SIX NATIONS — An Ontario Court of Appeal judge has overturned the dismissal of a man’s Indigenous rights by a Superior Court judge on a child support case between two Indigenous people.

Justice J.A. Roberts granted a stay pending appeal on a December 2017 Superior Court dismissal of Indigenous rights by Justice Deborah L. Chappel. In Chappel’s decision she called the pursuit of a Mohawk man’s Indigenous right to resolve a child support matter according to Haudenosaunee laws and customs “a waste of time”.

Roberts says in her March ruling, that Six Nations businessman Ken Hill would suffer irreparable harm if his constitutional question is dismissed — and granted a stay pending appeal on that issue.

The case is headed to the Ontario Court of Appeal in June.

Roberts repudiated the Kitchener judge, saying it is not up to both the child’s Six Nations Tuscarora mother, Brittany Beaver, and the Ontario legal system to unilaterally decide on Hill’s case — and that the case merits a full appeals court review.

The Appeal court also overturned Justice Chappel’s ruling that the case can proceed without the ability of Hill’s lawyers to be present for their arguments.

Beaver is arguing that a multi-million dollar provision in child support is not the proper table amount and is seeking resolution through Ontario’s legal system. She is asking for nearly $119,000 a month in spousal and child support combined.

Hill has been paying $10,000 a month in support to his ex-partner — and is seeking mediation with Indigenous experts for the matter in his own territory, asserting it is his Indigenous right not be forced into the courts of a foreign government to resolve the matter.

Raj Rasalingam, who is speaking on behalf of Hill, says the case is not about support or a family law matter — but is a matter of Hill’s right as an Indigenous person not be forced through Ontario’s legal system.

“He is challenging the very system of laws that did experiments on First Nations children, deprived Six Nations of lands and a legal system that took First Nations kids away from their parents to deprive them of their heritage and culture and identity,” says Rasalingam, pointing to the Truth and Reconcilliation Commission’s finding of Canadian systems inflicting “cultural genocide” against Indigenous people in Canada.

Lawyers for Hill reached out to the Haudenosaunee Confederacy Chiefs Council (HCCC) and the Six Nations Elected Council (SNEC) on the constitutional question via letters to Elected Chief Ava Hill and Jock Hill, Secretary to the HCCC.

According to court documents, Katherine Hensel, an Toronto Indigenous lawyer for Hill noted that the while SNEC did not respond, the Haudenosaunee Confederacy did and objected to an Ontario court making a determination as to whether the Confederacy has jurisdiction over the dispute, and whether it has authority granted under the Great Law which governs the Haudenosaunee people.

Hill’s resistance to the imposition of a foreign legal system is not unique.

In 2015, a Six Nations family fought a historic battle in an Ontario court for their Indigenous right to treat their child with Indigenous medicine instead of chemotherapy for leukaemia — stating it was their constitutionally protected Indigenous right.

In that case, Justice G.B. Edwards pointed to a 1996 decision at the Supreme Court from a BC fishing dispute. Justice Antonio Lamer then defined what Indigenous rights look like in the Canadian legal system as defined by the constitution.

Lamer said in his ruling that Indigenous rights exist because Indigenous people were already present in the continent prior to the arrival of Europeans — “participating in distinct cultures, as they had done for centuries.”

Lamer goes on in his ruling saying the litmus test to qualify if a matter is an Indigenous right or not — is to “determine if an activity is an element of the practise, custom or tradition integral to the distinctive aboriginal group claiming the right.”

Hill is arguing that the Haudenosaunee have “a robust law, a dispute resolution system, which, among other things, determined how disputes within and between families were to be resolved.” He argues the traditional governance system “has been practiced continuously since the time of contact with European settlers, despite the operation of other, colonial legal systems.”

Hill said in his constitutional question an Ontario court has no jurisdiction to deal with the Family Law disputes between himself and Beaver, who is also Haudenosaunee. Hill says that imposing Ontario’s legal system in this matter violates his Indigenous rights.

But Beaver and her lawyers argue that although she is a Tuscarora woman ethnically, she does not consider herself to be culturally Haudenosaunee — and sought a dismissal of Hill’s right to assert his Indigenous rights in resolving this case.

Justice Chappel dismissed Hill’s constitutional question in December of 2017 — imposing provincial framework only to resolving the case.

While she did point to Justice Lamer’s clarification in the reason for her judgement, she ultimately dismissed Hill’s Indigenous right in the case saying that “allowing it to proceed would be a waste of time.”

But in March 2018, a Court of Appeal judge overturned that dismissal and now the constitutional question of Indigenous rights is back on the table.

Raslingham says the fight is an unusual one with two Indigenous people fighting — one to apply Indigenous rights and one to ignore them.

Hill has decided to take up that fight and assert his Indigenous right not to be forced into a foreign legal system.

“Mr Hill has chosen to advance his unique rights. A court that occupies non-surrendered land of the Six Nations cannot itself deliver justice,” says Rasalingam. “Mr. Hill is well known in his community to not only having looked after his children but many members of his non-related community of Six Nations. He has provided a million dollar paid up home and all schooling and expenses for his son. He does pay a huge sum of money in monthly support. This is about his kids identity he is fighting on.”

Hill said in an affidavit that he is “obligated to abide by Haudenosaunee law to the exclusion of Ontario and Canadian Family Law, that the operation of Ontario and Canadian Family Law is inconsistent with his culture and that of his community, and that extending Ontario and Canadian Family Law is not in the best interests of [his son], his family or Haudenosaunee children generally.”

This is a substantial argument. In January 2018, Six Nations was granted official designation on it’s own independent child welfare service — a journey that began nearly ten years ago to unravel Haudenosaunee children from the grips of the provincial child welfare system in order to create an Indigenous-led community based system that respects internal cultures, traditions and protocol.

Hill says he has been advised through his oral tradition that “Ontario and Canadian legal processes have harmed and continue to harm Haudenosaunee children, families and communities — whereas Haudenosaunee culture and law “prioritizes the interests of children and considers the collective community to be responsible for the care, protection and well-being of children.”

Though Beaver and her son reside in Waterloo and not on Six Nations of the Grand River reserve — they do reside on Six Nations territory within the Haldimand Tract. Hill says Haudenosaunee law and legal processes are binding upon Haudenosaunee people living within the Haldimand Tract, and not only to those who live on the reserve.

But Beaver and her lawyers argue that although she is a Tuscarora woman ethnically, she does not consider herself to be culturally Haudenosaunee. She sought a dismissal of Hill’s right to apply his Indigenous right in resolving this case — and wants only provincial law to apply.

Beaver declined to comment on the Appeal Court decision to stay.

In her affadavit, Beaver says, “I cannot provide (my son) with a lifestyle comparable to the lifestyle enjoyed by Kenny on the current amount of child support paid by him.”

Currently that amount is around $14,000 a month including fees for the child’s private school tuition.

Beaver currently lives with her new partner, their child, and her son in Waterloo — in $900,000 home Hill purchased for her. She is pursuing $33,183 a month in child support for their son and $85,701 a month in spousal support for their five year relationship which ended in 2013.  Hill’s team says there is significant evidence showing a spousal relationship never existed.

According to court documents Beaver is seeking a Muskoka cottage, to be designated the beneficiary of Hill’s life insurance policy and $200,000 in legal costs.

Hill provided Beaver with an extensive list of gifts, properties, vacations and vehicles for herself and extended family members totalling over $2 million.

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