BRANTFORD — A controversial housing development planned by Sifton Homes and Riverview Development on Toll Gate Road in Brantford, has been delayed further with an appeal put forward by the Kanien’kehá:ka (Mohawk) Men’s Fire.
The area targets the former site of the historic 1830’s -1840’s Mohawk/Mississauga village of Davisville as well as extremely sensitive and unique environmental features and endangered species of wildlife. Much of the site and surrounding area is already designate an Area of Natural Scientific Interest (aka ANSI).
The months-long OMB hearing, which ended almost a year ago, heard Six Nations interests and concerns voiced through the Kanien’kehá:ka Men’s Fire. But the delegation cried foul after their presentation was moved to the last item on the agenda, seriously curtailing the time they were given to make their argument. Thus, the call for the appeal so their presentation could be heard in full and considered. A counter appeal, asking that the Men’s Fire appeal be dismissed was subsequently lodged.
Six Nations arguments were heard by Susan Schiller, full time vice-chair of OMB, last Thursday and Friday.
“The motion was to dismiss the appeal by the Men’s Fire,” explained Schiller. “Whether the appeals will be dismissed, in which case there will not be a hearing, or that the appeals will be allowed to go forward.”
A, so-called, expert witness brought in by Tri-City Aggregates, who also have interests in the land, was heard earlier saying that the Men’s Fire appeal was without merit. But the expert admitted under questioning that he had not even read the Men’s Fire’s position paper in its entirety before forming his conclusion.
The Men’s Fire were represented by spokesperson Susan Draper, who has been doing legal research for the Fire for some time now. Draper made a well researched, logical and powerful presentation for Ms. Schiller to consider.
In her presentation she tried to clarify what she believes is a misunderstanding about what the complaints of her clients, the Mens Fire, actually were.
“Responses from lawyers Tri-City Aggregates, the City, Sifton Homes and Grandview seem to indicate that their objection is primarily due to lack of notification or of notice,” she began. “This is a fundamental misunderstanding of what the issues actually are. We have outlined in our letter of appeal, that while notification and consultation is one of the aspects, that the issues don’t have as much to do about notification as it does the protection of our property that is currently being used by Onkwehonwe people (for medicines and ceremonial materials) even currently.
“The use of the land for those purposes is protected under constitutional rights and treaty rights, which include hunting, fishing, the pursuit of sustenance collection of medicines, and the performance of traditional ceremonies,” she went on. “TCA is aware of this, as is the city.”
She told the OMB that the delegation asked the City to notify them of that meeting to allow them to come to the final decision meeting. But according to Draper, they did not.
Some of the material not heard by the OMB, and not read by the “expert witness” speak specifically to land use issues and that the provincial policy, since 2014, “now allows for consideration of native rights under section #35 (of the Canadian Constitution). It also discusses the protection of culture and traditional ways.”
Draper explained the fundamental lack of recognition of Indigenous rights, culture and underlying title when considering the use of contested land.
“One of the things we also brought forward was that we are still as a society struggling with the concept of difference,” said Draper. “And when Mr. Patten (lawyer) says, all potential adverse affects have been considered as they could affect the community, that is not entirely correct, because the unique needs and adverse impacts on the Haudenosaunee people have not been included or considered.”
She explained the different understanding of the term “open space” as presented in proponent’s arguments.
According to the wording of the by-law, open spaces also includes art galleries, museums, public streets and highways, temporary buildings and Ontario Hydro undertakings, which are all significantly impactful uses of open space, according to Draper.
She also pointed out a cultural misunderstanding of what a wildlife corridor is and is not.
“A wildlife corridor for hunting purposes is not going to work and infringes on treaty rights,” said Draper. “TCA and the City’s representation that the plan is providing open spaces and protected open spaces as only a method to mitigate the Haudenosaunees’ need to continue their traditional uses of that land, and is inadequate.”
She presented that, in her estimation, the combination of manipulation of her client’s time to make its presentation, the lack of communication from City Hall and the fact that the presentation was not fully read before the “expert” declared it to be without merit, adds up to what she called, “abuse of process.”
In her closing remarks, Draper said, “My client respectfully submits that TCA has not sufficiently demonstrated that the appeals are without merit, and we request that our appeal continue.”
Ms. Schiller could not give any time frame for her decision on whether to allow the Men’s Fire appeal or quash it.
“I thought Sue did a great job for us,” said Men’s Fire member Bill Montour.