OHSWEKEN – In September of 1995, Justus J. Kent made a ruling that may have relevance to issues in the news today. The case is filed with the Ontario Court of Justice (General Division) Brantford under O.J. No. 3061 Court File No. 1820/93.
In this case, Leslie Doctor and Helen Doctor challenged Ontario’s jurisdiction regarding the installation of a large swimming pool on their land, saying since the land in question was on the Johnson Tract, and since the people challenging Building Code regulations were both “Haudenosaunee”, they did not feel they needed to comply.
Looking back on the case, the Doctor’s lawyer was not very well prepared for this fight, and they lost. But within Kent’s reasons for judgment, there are a few very interesting points that may, or may not, apply to bother the Johnson Tact land transfer between Brant and Brantford, and the Burtch question.
Kent accepted testimony and evidence proving the land in question “may well be” still be land reserved for Mohawks and others of the Six Nations protected under the Haldimand Deed of 1784.
He accepted in his reasons for judgment, that one Peter Green of the Six Nations, and ancestor of the present landholder, once occupied the land in question. Although the Doctors could not produce a Deed, they were able to convince the court through other documents and generations of occupation, that in fact it has always been in the family.
“As I understand the evidence,” he goes on, “the practice that has developed to permit a deed to be obtained is that a conditional, or less than absolute, release or surrender of lands is made to the Crown and the Crown then executes and delivers a patent or deed as directed by the surrendering party or parties.”
“Another means that has been used to create documentation of title is for the individual occupant of land or a band council to make an absolute surrender of land or lands to the Crown, with the Crown then being free to grant a patent of those lands at some subsequent point in time.”
Although the possibility exists that there may have been either an absolute surrender or a conditional surrender of the subject lands as part of some larger surrender, on the evidence that I heard, it seems more probable than not that neither an absolute surrender or a conditional surrender of the subject lands has ever taken place. If that is correct then the respondents have the most significant t interest in the land, namely possession, use and benefit. However, the Band Council may have an underlying reversionary interest and the Crown may also have an underlying interest. These underlying interests exist because no patent or deed may be created without the involvement of the Band Council and the Crown.
“It is also possible that the lands are part of an Indian Reserve,” according to Kent.
Turning to the law itself, Kent offers one reason the Doctors did not win the case.
“Although the Supreme Court of Canada has ruled that Provinces may legislate, within their sphere of jurisdiction, over Indians, certain rules have evolved which create exclusion for Indians and Indian lands.”
In his reasons for judgment, Kent hints that this point was not submitted by the Doctor’s lawyer hinting that it could have made a difference in his case.
Kent then quoted from a 1985 case filed as Dick vs. The Queen.
“No Provincial legislation that encroaches upon constitutionally protected native rights can apply to Indians and Indian lands … There was no evidence on this application that the respondents relied on any such right,” he said.
This may be a very interesting point that may not have been considered by either party in the Brant/Brantford land transfer.
He also underscored that the Province has no legislative right to that which would impair the status or capacity of Indians.
“The Provincial legislation may not affect the Indians right to possession of reserve lands,” he ruled recognizing that the point of this action was abiding by safety rules and not who is in possession of the land.
In conclusion he wrote, “The Provincial legislation may not come into conflict with the provisions of the Indian Act of Canada or other federal enactments related to Indians. The normal rules of paramountcy apply and if there is actual conflict, Federal legislation prevails.”
In this case, the Doctors had to comply since the case was limited only to safety in outdoor pool building, according to Code, and did not depend on title of the land itself.
However, it may have offered a underlying problem to the Brantford and Brant’s land swap deal on the same Johnson Tract land without proper consultation and accommodation to Six Nations.