What was said at Birkett Lane, and what the October trial could settle without asking
On the nineteenth of August the Lands and Resources Department held a virtual engagement session on the proposed Birkett Lane development, a hundred acres on the Brantford side of the river. Sessions like it happen often. This one produced four answers worth setting down, because together they describe how a two-hundred-and-forty-year-old promise is being handled six weeks before a courtroom takes it up.
Asked what makes the Council certain it holds an interest under the Haldimand Proclamation, the Director of Lands and Resources answered that the instrument says the Mohawks and others of the Six Nations, and that we are all grouped as one body together. Asked whether the Proclamation is a treaty, he said there is no actual treaty to speak of, and none was made with the chiefs. Asked what process had reached Mohawk posterity, the panel said the engagement is not Mohawk targeted and is geared to all Six Nations. Asked who the developers bought from, a panellist said he did not know.
Those answers were candid, given without notice in a public forum by people with no lawyer beside them, and that is worth more than a polished evasion. But candour is not accuracy, and the first three describe a legal position with consequences most people have never been told.
Start with the grouping. The Proclamation of 25 October 1784 sets apart the tract for the Mohawks and others of the Six Nations who wished to settle there. The recital gives the reason twice: the early attachment of the Mohawk to the Crown’s cause, and the loss of their settlements in New York which they thereby sustained. The consideration is Mohawk. The instrument names no council, creates no corporation, and appoints nobody to hold anything for anyone. It runs to persons and their posterity, which in law means it descends as any inheritance descends, parent to child, individually.
Nor is that only how it reads now. In 1803 the Confederacy sought a voice in Grand River affairs and was refused. William Stone, a New York editor writing his life of Brant a generation later, recorded the reason as it was understood: the grant had been notoriously made for the exclusive benefit of the Mohawk nation. Stone was a historian, not a lawyer, and his book is no instrument. But he wrote close enough to the events to know what people believed, and it was not that everyone was grouped as one body together.
Grouped as one body together is therefore not a description of the instrument. It describes what happened to the people named in it. In 1924 the Crown dissolved the council that held this relationship and imposed an elected system under a federal statute. Everyone here has lived inside the consequences since, and the body that exists today did not choose them. But an interest descending to individuals does not become collective because a statute reorganised the government.
Which brings us to this autumn. On 5 October the liability phase opens in the action the Elected Council commenced against Canada and Ontario in 1995. It is an accounting claim: its premise is that lands within the tract were improperly surrendered and the proceeds mismanaged. Canada’s defence is that the surrenders were valid.
Read them side by side and something appears that neither party says out loud. Both agree surrenders happened. They differ only on whether they were proper and whether the money was handled correctly. Nobody in that courtroom argues the interest was never released at all.
That is not a technicality. An accounting claim asks what a loss was worth, and accepts in its framing that the loss occurred. If it succeeds the outcome is a sum of money, and whether the interest still subsists is answered by implication, without argument, in the negative. A right in land becomes a figure in a judgment.
And if the interest descends individually, it is not the Council’s to convert. A body constituted under section 74 of the Indian Act, drawing its membership from a register kept under that Act, is not the posterity of the Mohawk of Canajoharie, Tikondarago and Aughquaga. The register excludes people the Proclamation does not, by marriage, by parentage, by enfranchisement, and by rules Canadian courts have found unconstitutional. Every one is somebody’s grandchild, and on the face of the 1784 instrument every one holds.
A principle of Canadian constitutional law speaks to this directly, and it came by way of a case about a lawyer rather than a treaty. In Andrews v. Law Society of British Columbia the Supreme Court held that equality does not mean identical treatment, and that treating people who are differently situated as though they were the same can itself be discrimination. The accommodation of differences, the Court said, is the essence of true equality. Grouped as one body together is the reverse. It takes a distinction the Crown made in 1784, for reasons recited on the face of the instrument, and dissolves it in the name of unity.
The Universal Declaration supplies the other half. Article 15 provides that everyone has the right to a nationality and that no one shall be arbitrarily deprived of it. A register deciding who is Mohawk by rules written in Ottawa, and a proceeding settling a people’s rights without asking them, arrive at the same place by different roads.
The notice answer is not a small point. Geared to all Six Nations means a process built to reach a band list. Not a descendant in Rochester, or Ohsweken, or Hamilton, whose grandmother lost status in 1957 and has never appeared on any register kept by anyone. Nor further, and it needs to. Loyalist families scattered after the Revolution to the Maritimes, to England, and in numbers to the Caribbean, where they were resettled in Jamaica and the Bahamas. Two hundred and forty years of descent respects neither border nor coastline. A person holding under the 1784 instrument could as easily be in Kingston, Jamaica as Kingston, Ontario, or in Johannesburg, or Shanghai. Descent is a fact about parentage, not about where somebody lives.
A court order in the same litigation illustrates it. In September 2022 a judge of the Superior Court directed notice of a representation motion to twenty named recipients. Seven are Mohawk: the Longhouse at Rooseveltown, Akwesasne, Kahnawà:ke, Kanesatake, the Mohawks of the Bay of Quinte, Wahta, and Saint Regis. Mohawk communities across two countries and three provinces, served by order of a court, in a proceeding about the Haldimand Tract. The Mohawk of Grand River were not on the list. The Bay of Quinte Mohawks were, and they hold under a different instrument on a different tract. The one Mohawk community living on the land the Proclamation describes was the one left out.
I do not read that as bad faith, but as the natural result of the grouping: once the posterity interest is folded into a collective claim, there is no separate party to notify, because on that view none exists.
One further matter may be the hinge of the case. In 1793 Governor Simcoe issued a patent for the tract. It covered less land than the Proclamation, did not reach the source of the river, and turned the others of the Six Nations from people permitted to settle into principals of the grant. Brant refused it, for that reason. An instrument that is refused does not replace the one it was meant to replace. There was no novation.
That matters because of where the Council’s standing comes from. When the Ontario Court of Appeal restored the Council’s action in the Isaac case, it held the Simcoe patent vested a personal and usufructuary interest rather than a fee simple, which brought the lands back within the Indian Act definition of a reserve, and the Council’s statutory footing with them. Remove the patent and, on the trial judge’s reasoning, the lands are not a reserve and the Act does not reach them.
So a party cannot rely on Simcoe for its capacity to sue while claiming the extent of Haldimand by inference. They are different instruments describing different tracts, and one was refused. The narrowing attempted in 1793 never took effect, because Brant saw it and would not sign. It would be strange to accept it now, in a courtroom, on behalf of people who were never asked.
One more thing belongs on the record. Eleven months before the August session, the fifty-ninth Elected Council proclaimed 25 October a Sovereign Holiday in perpetuity, reaffirming by resolution what it called the Haldimand Treaty between the Six Nations of the Grand River and the British Crown. A holiday commemorating a treaty in September, and no treaty to speak of the following August. Both cannot stand, and which is correct matters, because if the Proclamation is a treaty then section 88 of the Indian Act is expressly subject to its terms.
On 20 August I wrote to the Band as plaintiff, to the Director of Lands and Resources, and to counsel of record, copied to the Attorneys General of both Crowns. It asks for two documents: an instrument by which the Mohawk of Grand River or their posterity gave the Council authority to settle this interest, and a surrender executed by those people releasing it. If both are produced I will withdraw the objection in writing. The same questions were asked in 2022, 2023, 2024 and January. None has been answered.
None of this requires anyone to be in the wrong. The Crown made a promise to named people and their descendants, then spent a century administering it as a file. What is asked is narrower than it sounds: that before a court converts that promise into a number, somebody establish that the people who hold it agreed.
Originally published in the Two Row Times, August 26, 2026 (Volume 14, Issue 2), page 6.
