SIX NATIONS/BRANTFORD – A development is being proposed for more than 100 acres in Caledonia, as well as the transfer of 7,000 acres in Brantford/Brant for the purpose of development. Meanwhile there are two litigations filed by Six Nations Elected Band Council against Brantford and the Ontario provincial and the federal Crowns.
Both are stalled or completely frozen in bureaucracy while municipalities continue to get permits to buy, sell and develop the very land named in both litigations.
Where are these actions within the Canadian Court system, and is there any hope of either being addressed in this lifetime?
Lonny Bomberry, Director of Lands and Resources for the Elected Band Council brought the Two Row Times up to date on the status of its legal actions this week, but there really wasn’t much to report.
“The one claim that we have in court is a claim against Canada and Ontario, which says ‘you are fiduciaries and you had a trust-like obligation to us. You were to manage all of our land and all of our money. There are instances where you did not do that and we should have had all this land and all this money, which we don’t have now and we want an accounting for it. If you can’t account for it, then make good for your wrongful management. It’s not a land claim in that we are trying to displace third parties,” says Bomberry, who is also a lawyer.
Although he says he understands that most of these land patents, which put it in third party hands, were given illegally, he concedes, “The problem with Canadian law is that after a while if you don’t exercise your legal rights to get it back, your rights disappear.”
The roadblocks put in the way of Six Nations exercising those rights are well documented and also well used by the colonial government and are still the status quo of today.
The litigation, originally filed in 1995, is buried under a mountain of delays and bureaucratic heel-dragging, but Bomberry seems intent to be patient and wait as long as it takes, meanwhile, if deals can be worked out with developers to at least accommodate Six Nations something, he is all for that.
“They are responding, but very slowly,” says Bomberry. “Comes a time when these roadblocks become too obvious, but that is not yet. But it can’t go on too much longer.”
Regarding the litigations against Brantford and Ontario filed more recently, that too is going nowhere fast. “We had discussions with Brantford on it on October 31st of last year. And the agreement was that we would try to get together to work out a resolution to it.”
So, how hard have either body been pushing towards resolution?
“I think we’ve had one meeting and things have kind of fallen off track in regards to having meetings to discuss it,” says Bomberry. “Both sides say they want to meet, but now it’s been all tied up in the boundary extension talks between Brantford and Brant County. They have a duty to consult us on that too.”
Whether they “have to” or not, the point is, they are not. And not much if anything is being done to ensure that process takes place.
“I think what Brantford is going to relay on is a decision that has come out of the British Columbia Court of Appeal in the Salmon Arm case, which states that the duty to accommodate does not lie within municipalities,” says Bomberry. “It’s the Crown that has that obligation. Although this decision is not binding in Ontario, it certainly has some persuasive value.”
But what about that 7,000 acre Johnson Settlement land transfer between Brant and Brantford?
Bomberry believes the talks cannot continue without Six Nations at that table as participants and not benign observers.
“It is my read that Ontario agrees that nothing can be done without involving us in that,” he says. “And there is potential for us to work out something in that arena.”
He seems hesitant to push the courts into action saying he feels it may not be cost efficient to do so.
“Litigation is expensive and it can drag out for years,” says Bomberry. “And especially something like this when you need historical experts. It could take years. I suppose we could push that issue if we want to, but we have chosen to try and get this worked out through negotiation, that’s always the easier way to do it.”
But even that stance doesn’t appear to be on the front burner and the way Canadian governments work, it may take longer than the courts.