HALDIMAND ‑ As reported earlier, the Men’s Fire of Six Nations has taken up the torch to defend what they believe to be unceded and unextinguished Aboriginal land title in Caledonia, earmarked for a large Empire Homes development project known as McClung Estates.
The Men’s Fire have compiled their case, partially using Supreme Court of Canada decisions that have changed the rules regarding consultation and accommodation.
One of the most powerful of these decisions was a land claims case heard in British Columbia at the country’s highest court in June 2014, which at the time was regarded as a “major precedent changing and far reaching decision.”
In a nutshell, the decision made by Chief Justice of the Supreme Court of Canada, Beverly McLaughlin, represents the first declaration of recognized aboriginal title in this country.
According to a lawyer in that case, “no longer can provinces and the federal government continue to deny that Aboriginal title exists. No longer can they continue to take the position based on archaic and racist legislation to advance their interests within the traditional territories in this country.”
In cases where aboriginal title is proved, there is now a much higher level of consultation and accommodation that must be satisfied before a project goes through.
The ruling goes on to say that in some instances, the consent of the First Nation will be required for projects already under development. And if they are under development, sometimes they will have to go back to the drawing board and get the consent of First Nations.
The Men’s Fire intends to call upon Ontario and Haldimand to recognize these Supreme Court decisions and stop the McClung project in its tracks.
It is their position that since there has been a registered claim against the property since 1999, Empire did not legally acquire the property and that Empire’s application for the subdivision was incorrect before it was submitted.
They contend that someone had to sign an affidavit/statement swearing that all the information on the application was correct. It wasn’t, so the affidavit/statement was invalid.
Since the application had to go through several steps for approval, at a number of different levels, and that none of those levels caught the fact that the application was incomplete and/or incorrect, it shows a failure of fiduciary duty on the part of each of the ministries who were supposed to ensure proper process was followed.
Empire applied for and received an injunction against anyone from Six Nations, or those who may be acting on behalf of Six Nations, as well as anyone from Haldimand, from accessing the property in any way.
There are also concerns of manipulation of the archaeological work deemed necessary by the Province. The Ontario Municipal Board has already stopped the project over what they saw as shabby or non-existent archaeological surveys.
The Men’s Fire states that previous studies in and around the area have revealed significant finds on various sites, therefore it’s reasonable to assume they’ll find something significant on the McClung site.
“If they do find something, they’ll have to stop work until everything has been cleared and/or decisions have been made about what to do with the site,” says a representative of the Men’s Fire. “This could take 1-2 years. We think they’re trying to get around the archaeology so they can push ahead without any regard to the culturally significant possible finds on the site.”
Court documents say that Empire and Haldimand believe they have already done all necessary consultation with the “recognized” representatives for Six Nations. They state they do not recognize HCCC or anyone other than Band Council as “recognized” representatives.
But as far as what is known, the Elected Council has not given its go ahead to the developers either.
According to the Men’s Fire, neither Haldimand nor Empire has produced a copy of its environmental report for review.
There are several other points of alleged misconduct the Men’s Fire hopes the hearing, slated for later this month in Cayuga, will expose. The exact date is yet to be determined.